Getting a divorce? If so, it’s important to update your estate planning documents during the dissolution process. As Sherry Bosse Lueders suggested in a 2015 blog post, “So, what do you about your estate plan when a divorce is pending? You may not be able to do anything about the disposition of community property until a settlement is worked out with your soon-to-be-former spouse. You can, however, change the disposition of your separate property by having a new Will drafted during the divorce (sometimes called a ‘bridge Will.’).”
The Washington Court of Appeals recently decided a case demonstrating that Sherry’s point, made five years ago, still holds true today. In the Matter of the Estate of Petelle, 8 Wn. App. 2d 714, 440 P. 3d. 1026 (2019), Michael Petelle filed a petition to divorce his wife, Michelle. The parties entered into a Separation Contract that was intended to be a “final settlement of all their marital and property rights and obligations.” But, before the divorce was finalized, Michael died intestate (without a Will). Michelle filed documents with the court requesting to be appointed as the Administrator of Michael’s estate. She did not inform the court about the Separation Contract. Michael’s mother, Gloria, petitioned the court that Michelle did not have the right to inherit Michael’s assets through intestate succession because of the Separation Contract. The Washington Court of Appeals ultimately agreed with Gloria, stating, “Michael and Michelle’s Separation Contract states that ‘[a]ll property which shall hereafter come to either party shall be his or her separate property and neither party shall hereafter have any claim thereto.’ . . . As such, Michelle waived her marital right to intestate succession by entering into the Separation Contract.”
Michelle presented evidence that the Separation Contract should not govern the distribution of Michael’s assets because the parties intended to reconcile. However, in the absence of a Will governing the distribution of Michael’s assets, the Washington Court of Appeals declared that even if that was true “it does not change the result.”
Also, undoubtedly, litigating this issue was extremely expensive. Michelle asked the court to award her attorneys’ fees on appeal, but the court denied the request.
The tragedy of this case lies in the unanswered question: What would Michael have wanted? At one point, Michael obviously agreed with the distribution of assets pursuant to the Separation Contract because he signed it. If he had proactively asked an attorney to prepare a bridge Will consistent with the Separation Contract, there’s a strong likelihood that the bridge Will would have definitively resolved the issue – with no need for expensive litigation. And, what about later? Suppose Michael and Michelle were sincerely interested in reconciling? If Michael had proactively asked an attorney to assist in revoking the Separation Contract and then prepared a bridge Will appropriate for the situation – again, there is a strong likelihood that the bridge Will would have definitively resolved the issue. Instead, it’s safe to say that the cost of this litigation dramatically exceeded any attorneys’ fees that Michael would have spent on estate planning. And, sadly, there’s no guarantee that the result of this litigation matched up with Michael’s wishes at the time of his death.
If you have questions about your estate planning as you go through a divorce, please let us know. We’d be happy to help.