Jeff spoke with Evonne Hopkins, a family law attorney with Hopkins Law Office located in Raleigh. They discussed what estate planning steps should be taken after a divorce, with Evonne responding to the following questions…
What things should be done after a divorce?
The divorce process can be grueling and exhausting, so when people finally get the divorce settlement, they will often forget or just postpone doing things such as changing the beneficiaries on retirement accounts they may have gotten as part of the divorce process or in their Wills and Trusts. The last person on earth you would want as your power of attorney or health proxy is your ex-spouse. Therefore, it’s extremely important that you get together with an estate planner to discuss what documents need to be changed and to make sure that there is no longer any joint property held in each other’s names. People need to have their new documents in place and not delay.
What if people are separated and NOT divorced? How does it affect estate planning?
If you separate and live in different residences, but you don’t have a separation agreement and you are not divorced yet, it is very important to have a separation agreement in place during this time. Even if you have gone to an estate planner and had the spouse taken off all of your estate planning documents, if you were to pass away without a separation agreement or divorce, under the law, your spouse can receive a portion of the estate.
How do guardianship nominations work in estate planning?
You cannot leave a child to someone in the same way you can leave a bank account or a cat to a person upon your death. You cannot simply appoint someone as the guardian of your child because of the constitutionally-protected status of the other parent, who has equal rights to that child, absent some other type of order.
Most people think that if they put who they want to have custody of their child in their will, that the request is valid. However, if the other parent is still alive, he or she has constitutional rights to the child; rights that the courts are historically lenient towards. Therefore, even if a custodial parent, in case of death, were to designate custody to a guardian rather than the other parent, the child’s remaining parent will likely be awarded custody by the court.
It is critical if there is an absentee parent and you wish to have your child raised by someone other than that parent, you need to terminate the other parent’s rights in order to guarantee your choice of the designated guardian upon your death.
To contact Evonne with any family law questions or for additional information, please call (919) 268-4070 or visit the firm’s website: www.RaleighLawFirm.net.
