Last week I wrote about divorce and how that impacts your Will and your overall estate plan, so it is only fitting that I write this week about how marriage affects your Will and your estate plan. 

Under Oregon statutes, if you have an existing Will, and then get married, and you are then survived by your (new) spouse, then your Will is automatically revoked by statute (with two exceptions).  This is a shock for most people.  It can be years later when they come into my office and find out that the Will they thought they had in place all of these years may ultimately not be honored.  The usual solution is to create a new Will or Revocable Living Trust for them. 

The exceptions to the automatic revocation are if: 1) the Will evidences an intent that it not be revoked by the subsequent marriage, or was done in contemplation of marriage; and 2) the person making the Will and his or her (new) spouse make a contract before their marriage (such as a prenuptial agreement) that either provides for the spouse or indicates that they will not receive any part of the estate.

So if a person is contemplating marriage, and wants to complete a Will prior to marriage, we can add in language to the Will that will keep it in effect despite the upcoming marriage.  In other words, we can overwrite the normal statutory revocation of the Will. 

In contrast to a Will, a Revocable Living Trust is not automatically revoked by the subsequent marriage of the settlor/trustor (the person who set up the Trust), unless otherwise stated in the Trust document itself. 

Also, keep in mind that with marriage there may be name changes and other changes that need to be integrated into your estate plan.

The rules surrounding Wills and Trusts can be complicated and counter-intuitive, and you are well advised to seek help from a competent attorney.  Also, the above rules are just another indication that when you have any major changes to your estate plan, such as a marriage, death or divorce, you need to check with your attorney to see if any changes need to be made.  Taking care of your loved ones, even after you are gone, will be one of the greatest legacies you leave behind.

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A few things to consider about how a divorce might affect your existing estate plan:

If you already have a Will, your ex-spouse will be treated as having predeceased you. In other words, your ex-spouse would no longer be the personal representative (executor) under your Will even if he or she is named as such, and would not be a beneficiary of your estate, even if the Will said otherwise. You should carefully consider whether you should name different or additional personal representatives and beneficiaries.

Your divorce decree may require that you include certain provisions in your Will, or that you have insurance policies with specific beneficiary provisions. Also, keep in mind that a subsequent marriage revokes your existing Will unless your contrary intent is clearly indicated.

In addition, there are a number of documents you may have in place that give your ex-spouse certain authority or rights with regard to your finances or health care that you may now wish to change. These may include a Power of Attorney, HIPAA Release, or Oregon Advance Directive.

If you have children, attending to their needs is a top priority. If your children are young or have special needs or should not be given a substantial sum of money for some reason, you will probably want to include carefully worded trust language for them in your Will or Trust, and will want to carefully choose the trustee and the successor trustee who would administer those trust funds. Your ex-spouse may or may not be the best choice to handle such trustee duties. You should also indicate in your documents who you would want to be the guardian for your children if you were not able to care for them. The guardian is the person who would be appointed by a court to make decisions about your children’s health care and where they live, and to make sure that their non-financial needs are being met.

The estate planning considerations mentioned above are not meant to be a complete list. If these considerations, together with all of the other considerations mentioned in this guide, are a bit overwhelming, the good news is that you do not have to handle all of these changes alone. There are professionals who are trained to help you and guide you through these important tasks. A competent estate planning attorney, for example, can sit down with you and help you decide whether you should have a Will or Trust, who should be in charge of the children if something happened to you, and which of your estate planning documents should be updated given your wishes and given the existing law at the time. While attorneys are not cheap, their advice can be invaluable, and they can help you create an appropriate estate plan that will give you peace of mind and will help meet your wishes no matter what the future holds.

Whether you are seeking a plan to help avoid a guardianship or conservatorship, or you need help handling challenging responsibilities, please contact us today. We welcome people from across northern Oregon and strive every day to deliver high-quality estate planning and elder law counsel.

An advance directive (sometimes called a “living will” or “health care power of attorney”) is one important component of this, but working with us often results in more complete and reliable protection for you and your family.

Our range of services includes:

• Comprehensive estate planning to allow you maximum control over what will happen to you and your assets if you die or become incapacitated

• Drafting of detailed, legally sound powers of attorney and other documents to prevent your affairs from being handled through a conservatorship or guardianship

• Personalized assistance if you need to petition for a guardianship or conservatorship in Oregon, due to the inability of a family member to handle their own financial or other needs

• Ongoing legal advice and assistance if you have been appointed as a conservator or guardian, helping ensure you meet obligations such as submission of annual reports and remain in compliance with all specific Oregon laws in this area

Your options may include:

• Gaining assurance that your substantial assets are sufficient for any likely scenario, so that you know you will be able to pay “out of pocket” for long term care

• Purchase of long term care insurance that provides security and peace of mind

• Specialized estate planning — from specific language in your will and power of attorney to development of an income cap trust or other specific legal document — designed to accomplish Medicaid planning and protect the futures of your spouse and other heirs

Not only does attorney Phil Hingson have extensive knowledge of Oregon laws, estate planning, and Medicaid eligibility, our firm frequently calls upon other specialized resources you can trust — from capable financial planners to providers of legitimate, proven long-term care insurance. We can provide referrals or work along side you to help ensure your goals are met.

Phil Hingson is an experienced, knowledgeable lawyer you can talk to about any situation and depend on to get sound legal guidance. To get past the misinformation out there about Medicaid eligibility and long-term care planning, please contact our office today and arrange a consultation.