One thing that tends to be overlooked in a lot of family law cases is the distribution of your assets once you die. It doesn't matter if you are young or simply young at heart, protecting your assets is very important. If you had will during your marriage, chances are your ex-spouse probably got your share of everything. It's what attorneys refer to as a mutual reciprocal will and it simply means that you and your spouse give the other one all of your stuff once you die. If you didn't have a will during your marriage, there is still the possibility that your now ex-spouse could get some of your possessions upon your death.
So the question becomes, how do I make sure that my ex-spouse gets nothing more from me when I die? Here are answers to 7 questions, with some help from the North Carolina Bar Association, that may help you out.
1. Get a will. A will tells everyone where you want your possessions to go. This allows you to give everything to any person and leave out any specific person or persons. This also allows for your family to grieve and not worry about what you wanted to happen to your things.
2. So I have decided to do a will, what can I put in there? You can put just about anything in a will from what should happen to your remains, to your possessions and even what should happen to your children.
3. Can I will my children away? No. You are, however, able to name an individual that you would like to see be the guardian for your children. The Courts will generally look at your suggestion as a strong guide in appointing a guardian but will look to other factors in making a final determination as to the proper guardian. If the person that you suggest is not physically capable of caring for your minor child, the Court may appoint another individual to be the guardian. Your ex-spouse will be considered to be the guardian of the children no matter your wishes.
4. What type of things can I not put in my will? Generally you can put just about anything in your will. If there is something in your will that is illegal, or not capable of being completed, a court may disregard that provision and allocate any funds under a different legal theory.
5. So what happens if I decide not to do a will? Your estate would pass to family members based on their relationship to you. If your divorce has not been finalized, your spouse may be entitled to a share of your estate. A divorce acts to create a legal separation of your interest in the possessions of your ex-spouse. It is almost as if they died before you in the eyes of the law.
6. What should I do with any policies where my ex-spouse is the beneficiary? If you have any sort of policy where your ex-spouse could benefit from your death, you should change that shortly after the finalization of your divorce. At that time, you should make your children the beneficiaries. It is probably not a good idea to have your new significant other put as a beneficiary. Putting your children in that role will generally be safer.
7. What else can I do to protect my possessions from my ex-spouse? One other option is to create a trust and put your property into that trust. A trust would allow for your assets to be managed while you still get to use them. You can be the person that manages your assets, called a trustee, and have the power to add or remove assets from the trust.
If you have any questions about family law, estate planning, or any of these topics, please visit our website Scott Law Group or email us at [email protected]. If you still have questions, or wish to schedule an appointment with one of our attorneys, call us at (336) 993-5000.