Til' Death Do You Part

BREAKING NEWS! DIVORCE EQUALS DEATH!

Just kidding, if that was the case, lawyers like myself would certainly be out of businesses (and living a pretty sad life). But this is, believe it or not, a true statement of law when it comes to the question, “What happens to my will if I get divorced?”

The law in Georgia is summed up as follows: if you have a valid will and get divorced, your ex-spouse is treated as if they had died before you did (which is termed “pre-deceased”).  So what does that mean for you?  Your former spouse will be treated as if they had died before you-meaning they cannot inherit under the will. Problem solved!

Not so fast, what if you die while your divorce is pending? Different result. What if you and your ex-spouse have children? Well, then they may take the gift, but that’s not certain either. And at this point, you will no longer be around to say whom you want to take the inheritance instead.  It is likely that your will should be revisited and revised after divorce.

What happens to your will if you remarry? That’s the even scarier part—your will is revoked entirely in Georgia upon a subsequent marriage – meaning, your will is null and void, and none of your property will pass as you may have desired.  Take, for example, Hoyt Cromer.  Hoyt tried to make his marriage work, but he just couldn’t do it, and he and his wife divorced.

Hoyt had executed a will in 1961, a few months, before his divorce. He then gave love another shot (à

la Kim Kardashian) and remarried in 1963.  When the time came for Hoyt to meet his maker, his brother probated his will, but his new wife challenged the will-saying that her marriage to Hoyt revoked the 1961 will. The Court then held that unless Hoyt’s will contained a clear, magical language, that the will was “in contemplation of” Hoyt’s new wife, it was totally revoked.*

As you can see, there are all sorts of “X-Factors” at play when probate law and divorce law meet. 

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*Facts based on the case of Johnson v. Cromer, 234 Ga. 73(1975). 

You Will or You Won't?

I recently stumbled across this list of: 

Five Reasons to Die
 Without a Will
source: http://www.hughchou.org/calc/withoutawill.html

1.     The court can do a better job deciding how to disburse your assets than you can.

2.     The court can choose a better personal representative to handle your estate during probate than you can.

3.     The court can choose a more caring guardian for your minor children than you can.

4.     The government will use your estate tax dollars more efficiently than your favorite charity would use a charitable bequest.

5.     Your grieving loved ones will be better off looking after your affairs without your will.

            Interesting, the lesson here? – let someone else do it.   A court can choose who’s better suited to take care of my child? And my grieving loved ones will handle dealing with the creditors and debts I’ve left behind? Someone else can decide.   

            On the other hand, I thought about one Adam Yauch.  More aptly known as the Beastie Boys’ (one of the rap groups responsible for bringing hip hop music into the mainstream in the mid-to-late 1980s)  “MCA”, Yauch passed away from cancer in 2012. 

            Yauch’s will named his wife as the executor of his estate and provided that his wife and daughter would receive all of his estate, worth approximately $6.4 million. Most uniquely, Yauch stated that he didn’t want anything relating his “artistic property" to be used in advertising.[1]  He “might stick around or [he] might be a fad,” but he certainly “won't sell [his] songs for no TV ad.” It seems Yauch got pretty clear on what he wanted his will reflected that.  (credit: ARTS, BRIEFLY; Yauch's Will Protects His Artistic Integrity, James C. McKinley, Jr., available here)

            All wills aside, what about healthcare decisions? The bottom line is, no one is talking about making critical healthcare decisions because they don’t want to. It’s an uncomfortable subject that no one wants to think about. Many doctors won’t even broach the subject with most patients, especially elderly patients.   

            Another fact to consider is that more and more people are growing older without children or spouses to help them in these situations. According to the New York Times,  “In 2010, according to census data, nearly 19 percent of women age 40 to 44 had not given birth, compared with around 10 percent in 1980.” Coupled with a staggering divorce rate of nearly 50% in our country, people are growing older without anyone there to support them.  Living wills are crucial in this respect—they not only appoint someone to make decisions but, pre-approve what you want this person to decide.  

            At what point do you need to sit down and address these issues with a loved one to ensure that they have a plan in place for when they are no longer capable of making decisions?

           

           

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[1] Note: some legal scholars feel this is portion of Yauch's will may be invalid, but, as of today’s date, which is fast approaching the one year mark, no one has challenged this portion. See this Forbes article for more.