After a termination of the marriage of a man and woman, the newly divorced man or woman often fails to consider reviewing and updating his or her estate planning documents a top priority. In the past, this sometimes resulted in unfortunate and unintended consequences. It is long-standing statutory law in the State of Ohio that if after executing a will, the individual executing the will is divorced, obtains a dissolution, has a marriage annulled or obtains a legal separation, any conveyance of property in the will to the former spouse or to a trust available to the former spouse or any nomination of the former spouse as executor, trustee, or guardian is revoked, unless the will expressly provides otherwise. However, until recently, Ohio statutory law did not address the effect of the termination of a marriage on previously executed designations of the ex-spouse as power of attorney, trust beneficiary, death beneficiary or joint property owner. For example, until recently, an ex-spouse named as beneficiary on a life insurance policy would still receive the insurance benefits unless the owner of the policy had changed the beneficiary designation after the marriage ended.
Many of those unintended and unwanted consequences have been corrected with the enactment of the Ohio Trust Code which became effective on January 1, 2007. These statutory laws provide a common sense solution to an old problem and, basically, with respect to all estate planning, treats an ex-spouse as if he or she had predeceased the estate planning individual. The issues addressed are as follows:
- Trusts – Unless the trust or a separation agreement provides otherwise,
if, after executing a revocable trust, the grantor is divorced, obtains a dissolution, has the marriage annulled or obtains a legal separation, the spouse is deemed to have predeceased the grantor with respect to any provisions of the trust, powers granted in the trust or nomination as trustee. If the parties remarry each other, the spouse shall NOT be deemed to have predeceased the grantor with respect to the trust and such provisions shall not be revoked.
- Power of Attorney – If a principal executes a power of attorney designating the principal’s spouse as his or her attorney in fact and later obtains a divorce, dissolution, has the marriage annulled or obtains a legal separation, the power of attorney is revoked. If the parties later remarry each other, the remarriage does NOT revive the power of attorney which shall remain revoked.
- Death Benefits – Unless the designation of beneficiary or the judgment or decree granting the divorce, dissolution or annulment specifically provides otherwise, if a spouse designates the other as beneficiary of a life insurance policy, an annuity, a payable on death account, an individual retirement plan, an employer death benefit plan or another right to death benefits arising under a contract, and later obtains a divorce, dissolution, legal separation or annulment, the designee shall be deemed to have predeceased the spouse who originally made the designation. If the parties later remarry each other, the beneficiary designation shall remain in effect and shall not be revoked.
- Joint Property – Unless the judgment or decree of divorce, dissolution or legal separation states otherwise, if two individuals hold personal property as joint tenants with rights of survivorship and their marriage is terminated by divorce, dissolution, legal separation or annulment, then the survivorship rights terminate and each spouse is deemed to own an undivided one-half interest in common in the property. If they later remarry each other, the survivorship interest is restored and is no longer revoked.
Thus, the Ohio Trust Code helps solve a number of problems that previously existed when spouses terminated their marriage. It is still critically important to meet with an estate planning attorney and financial advisor upon the termination of any marriage in order to update beneficiary, executor, power of attorney and/or trustee information. However, in these situations when one fails to do so due to an unexpected disability or death or mere neglect, at least now, upon one’s death, the ex-spouse does not receive an unintended windfall; and the intended beneficiaries don’t receive less than the decedent would have wanted.
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Joseph E. Balmer
Joseph Balmer manages the Probate, Trust and Estate Administration department at Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues, and has been certified by the Ohio State Bar Association as a specialist in Estate Planning, Trust and Probate Law since 2006.