Douglas A. Turner, P.C.

A broken marriage is a marriage overflowing with broken promises and misunderstandings. The last promises are those made in the divorce decree. While those promises, like others, are usually broken or misunderstood, many disgruntled ex-spouses are going to court to enforce the promises, or the promises as they remember them. However, the court is not the divorce court. It is the probate court.

When a person is granted a divorce, it is in divorce court. When a person dies, the court overseeing the dead person’s estate is the probate court.

Protecting an Estate from Claims of Ex-Spouses

As part of the probate court proceedings, the dead person’s creditors are given one last chance to collect debts and enforce contracts entered into by the deceased. “Creditors” includes former spouses.

A divorce decree and separation agreement is a type of contract. When a person dies, the ex-spouse has one last chance to enforce the promises in the agreement and collect any debts due the ex-spouse. The most common debt is child support.

For example, many parents of minor children are ordered to maintain a life insurance policy naming their former spouse and/or children as beneficiaries. The purpose of the insurance is to provide child support for the children after the death of the parent. This promise, to maintain life insurance, is often broken or so poorly written that the meaning is subject to different interpretations.

Disgruntled ex-spouses are, more and more, asking the probate court to enforce this promise, as they understood it. Ex-spouses file claims requesting payment out of other assets of the dead person’s estate or other insurance proceeds. The end result is some very unhappy heirs.

The child support/life insurance example is only one of many. The solution is:

1. clearly written promises in the separation agreement, and
2. detailed documentation of all payments made or obligations satisfied.

For example, if life insurance is required to provide child support, the amount of the insurance should be specified, the date on which the obligation ends (usually age 19) should be specified and what to do with any excess proceeds over and above the child support obligation should be addressed.

Many of these promises to maintain life insurance merely state that an insurance policy of $XX,XXX.XX must name the children as beneficiary (no end date), name the minor children as beneficiary (no definition of minor children) or name the children until they become emancipated (meaning that if the parent dies 1 hour before a child becomes emancipated, the entire life insurance policy must still be paid to the child!). There are documented court cases of children who received over $100,000.00 in insurance proceeds because the life insurance requirement ended upon graduation from high school or emancipation, and the child flunked their senior year!

The Importance of a Living Trust Estate Plan for Divorced Individuals

Last but not least, any person who is divorced with children or who has significant obligations under their divorce decree should seriously consider a living trust estate plan. Living trusts are harder and more costly to attack by disgruntled ex-spouses.

So, before you sign off on that separation agreement, read it carefully. Make sure that the extent of the obligations are clearly defined and document when the obligation is performed or satisfied. Last but not least, consider using a living trust to avoid the probate system.