Getting Comfortable With Estate Planning Terminology
Two ElderLawAnswers member attorneys offer concise definitions of common estate planning terms.
Read moreDivorce is a common life event for many Americans. In 2022, data shows that more than 670,000 divorces occurred.
In their estate plans, spouses may have entrusted each other with the right to make decisions for them if they ever became unable to do so themselves. In some states, the law automatically halts an ex-spouse’s appointment as decision-maker when the marriage ends. State law may also automatically disinherit the ex-spouse following a divorce. So, what happens if you die after you file for divorce but before it becomes final?
Local Elder Law Attorneys in Your City
Actress Shannen Doherty faced this same question. In her case, the divorce was deemed to be finalized before her death.
Born in Tennessee in 1971, Doherty is known for her starring roles in numerous hit television shows, including her characters Jenny Wilder in Little House on the Prairie; Brenda Walsh in Beverly Hills, 90210; and Prue Halliwell in Charmed.
She was initially diagnosed with breast cancer in 2015. Although Doherty announced in 2017 that her cancer was in remission, it returned in 2020 and, by 2023, had spread to her brain. She passed away on July 13, 2024, at age 53. Surviving Doherty are her mother, Rosa, and her brother, Sean.
While Doherty was battling cancer, she was also amid a divorce from her husband of 12 years, photographer Kurt Iswarienko. The divorce proceedings took more than 15 months to conclude.
Ultimately, Doherty filed for an uncontested divorce and signed the necessary paperwork the day before she died. Iswarienko signed the documents on July 13, 2024. A family law judge signed off on the divorce two days after Doherty passed away.
Doherty’s estate was able to retain the couple’s $6 million home in Malibu, California; a Salvador Dali painting; several vehicles; and all earnings from her acting.
In addition, as part of the divorce proceedings, Doherty had filed an income and expense declaration stating that she had $251,000 in the bank; another $1,880,000 in stocks and bonds; and insurance money from a lawsuit over damage done to her California home. She also stated that she had real estate worth $3 million and $134,000 in a pension fund.
In an interview several months before her death, Doherty told E! News about how she had begun selling some of her valuables and, with that money, was traveling with her loved ones. She also acknowledged that, in selling property and other items, she was trying to make things as easy as possible for her mother, with whom she was close.
Marriage is a legal relationship while you are alive. The passing of one spouse ends the marriage, leaving the other party as the surviving spouse.
Doherty and Ishwarienko were able to finalize their divorce and sign their respective waivers before Doherty passed away. This allowed Doherty to control what would happen to her money and property at her death. Had she passed away before the divorce was recognized as final, things could have looked much different. Iswarienko could have made a claim for her estate, including the home he shared with Doherty.
Although she and Iswarienko were in the midst of divorcing, Doherty likely could not have changed the provisions in her estate plan dictating who would receive her money and property until the divorce became final. Therefore, any money or property that she would have left her soon-to-be ex-spouse under a will, trust, or beneficiary designation would probably still have gone to him.
If Iswarienko had not been included in Doherty’s estate plan, he may have been able to file a claim against her estate for his elective share. This is because marriage, as a legal relationship, provides benefits to the surviving spouse. When one spouse dies, the surviving spouse is entitled to part of the deceased spouse’s estate – an amount that is dependent on state law.
Even if the deceased spouse’s will leaves the surviving spouse assets that amount to less than what they are entitled to, the surviving spouse can claim an elective share. This may result in conflict between the surviving spouse and the deceased person’s other heirs.
Had Doherty not executed a will or trust before her death, she would have died intestate. In Doherty’s home state of California, the intestacy laws (the state’s plan for what happens to a person’s money and property if they die without a will or trust) would have dictated what Iswarienko was entitled to. (Read more about what happens when you die without a will in another article.)
The exact terms of Doherty’s estate plan are currently unknown. This lack of public information may be because Doherty used a trust or beneficiary designations as part of her estate plan. The benefit of both of these estate planning strategies is that the matter stays out of the courts and the public eye.
No matter what stage you are in life, having an estate plan is important. Working with an estate planning attorney amid divorce proceedings can prove particularly crucial for several reasons. First, an attorney can help you understand how your assets may be divided and ensure that your estate plan reflects your current wishes. They can assist in updating your beneficiary designations, creating or modifying trusts, and addressing any potential tax implications your estate could face.
They can also provide you with guidance on protecting your loved ones' inheritance and ensuring that your assets are distributed according to your intentions. By collaborating with a knowledgeable professional, you can navigate the complexities of divorce while safeguarding your financial future and ensuring your estate plan aligns with your new circumstances. If you have not yet created your estate plan, it is not too late; find an experienced estate planner near you today.
For additional reading on the different aspects of estate planning amid divorce, be sure to check out the following articles:
Two ElderLawAnswers member attorneys offer concise definitions of common estate planning terms.
Read moreLong-term care involves a loss of personal autonomy and comes at a tremendous financial price. Proper planning can help your...
Read moreLitigation over James Brown?s estate has been dragging on for 14 years, but the case just took a big step towards resolution....
Read moreA North Dakota court decision involving a trust highlights the importance of taking current and potential step-relationships...
Read moreIn addition to nursing home care, Medicaid may cover home care and some care in an assisted living facility. Coverage in your state may depend on waivers of federal rules.
READ MORETo be eligible for Medicaid long-term care, recipients must have limited incomes and no more than $2,000 (in most states). Special rules apply for the home and other assets.
READ MORESpouses of Medicaid nursing home residents have special protections to keep them from becoming impoverished.
READ MOREIn addition to nursing home care, Medicaid may cover home care and some care in an assisted living facility. Coverage in your state may depend on waivers of federal rules.
READ MORETo be eligible for Medicaid long-term care, recipients must have limited incomes and no more than $2,000 (in most states). Special rules apply for the home and other assets.
READ MORESpouses of Medicaid nursing home residents have special protections to keep them from becoming impoverished.
READ MORECareful planning for potentially devastating long-term care costs can help protect your estate, whether for your spouse or for your children.
READ MOREIf steps aren't taken to protect the Medicaid recipient's house from the state’s attempts to recover benefits paid, the house may need to be sold.
READ MOREThere are ways to handle excess income or assets and still qualify for Medicaid long-term care, and programs that deliver care at home rather than in a nursing home.
READ MORECareful planning for potentially devastating long-term care costs can help protect your estate, whether for your spouse or for your children.
READ MOREIf steps aren't taken to protect the Medicaid recipient's house from the state’s attempts to recover benefits paid, the house may need to be sold.
READ MOREThere are ways to handle excess income or assets and still qualify for Medicaid long-term care, and programs that deliver care at home rather than in a nursing home.
READ MOREMost states have laws on the books making adult children responsible if their parents can't afford to take care of themselves.
READ MOREApplying for Medicaid is a highly technical and complex process, and bad advice can actually make it more difficult to qualify for benefits.
READ MOREMedicare's coverage of nursing home care is quite limited. For those who can afford it and who can qualify for coverage, long-term care insurance is the best alternative to Medicaid.
READ MOREMost states have laws on the books making adult children responsible if their parents can't afford to take care of themselves.
READ MOREApplying for Medicaid is a highly technical and complex process, and bad advice can actually make it more difficult to qualify for benefits.
READ MOREMedicare's coverage of nursing home care is quite limited. For those who can afford it and who can qualify for coverage, long-term care insurance is the best alternative to Medicaid.
READ MOREDistinguish the key concepts in estate planning, including the will, the trust, probate, the power of attorney, and how to avoid estate taxes.
READ MORELearn about grandparents’ visitation rights and how to avoid tax and public benefit issues when making gifts to grandchildren.
READ MOREUnderstand when and how a court appoints a guardian or conservator for an adult who becomes incapacitated, and how to avoid guardianship.
READ MOREWe need to plan for the possibility that we will become unable to make our own medical decisions. This may take the form of a health care proxy, a medical directive, a living will, or a combination of these.
READ MOREDistinguish the key concepts in estate planning, including the will, the trust, probate, the power of attorney, and how to avoid estate taxes.
READ MORELearn about grandparents’ visitation rights and how to avoid tax and public benefit issues when making gifts to grandchildren.
READ MOREUnderstand when and how a court appoints a guardian or conservator for an adult who becomes incapacitated, and how to avoid guardianship.
READ MOREWe need to plan for the possibility that we will become unable to make our own medical decisions. This may take the form of a health care proxy, a medical directive, a living will, or a combination of these.
READ MOREUnderstand the ins and outs of insurance to cover the high cost of nursing home care, including when to buy it, how much to buy, and which spouse should get the coverage.
READ MORELearn who qualifies for Medicare, what the program covers, all about Medicare Advantage, and how to supplement Medicare’s coverage.
READ MOREWe explain the five phases of retirement planning, the difference between a 401(k) and an IRA, types of investments, asset diversification, the required minimum distribution rules, and more.
READ MOREFind out how to choose a nursing home or assisted living facility, when to fight a discharge, the rights of nursing home residents, all about reverse mortgages, and more.
READ MOREUnderstand the ins and outs of insurance to cover the high cost of nursing home care, including when to buy it, how much to buy, and which spouse should get the coverage.
READ MOREWe explain the five phases of retirement planning, the difference between a 401(k) and an IRA, types of investments, asset diversification, the required minimum distribution rules, and more.
READ MOREFind out how to choose a nursing home or assisted living facility, when to fight a discharge, the rights of nursing home residents, all about reverse mortgages, and more.
READ MOREGet a solid grounding in Social Security, including who is eligible, how to apply, spousal benefits, the taxation of benefits, how work affects payments, and SSDI and SSI.
READ MORELearn how a special needs trust can preserve assets for a person with disabilities without jeopardizing Medicaid and SSI, and how to plan for when caregivers are gone.
READ MOREExplore benefits for older veterans, including the VA’s disability pension benefit, aid and attendance, and long-term care coverage for veterans and surviving spouses.
READ MOREGet a solid grounding in Social Security, including who is eligible, how to apply, spousal benefits, the taxation of benefits, how work affects payments, and SSDI and SSI.
READ MORELearn how a special needs trust can preserve assets for a person with disabilities without jeopardizing Medicaid and SSI, and how to plan for when caregivers are gone.
READ MOREExplore benefits for older veterans, including the VA’s disability pension benefit, aid and attendance, and long-term care coverage for veterans and surviving spouses.
READ MORE