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Why You Should Be Sure Your Estate Planning is in Order Before You See a Divorce Attorney

A careful divorce attorney asks to see all of your estate planning documents such as your:

  1. Will;
  2. Community Property Agreement;
  3. Revocable Living Trust;
  4. Durable Powers of Attorney;
  5. Limited Liability Company Documents;
  6. Pension Plan;
  7. IRA.

A person seeking a divorce needs to determine if he or she wishes to change his or her estate plan before a divorce decree is entered.

In a divorce action, the Court commonly issues a Temporary Restraining Order which among other things prohibits changing of estate plans before a divorce decree is entered.

  • In some cases, you may want to change the primary beneficiary of your life insurance and estate from your spouse to your children or a trustee for your children.
  • Not a good idea to change your primary beneficiary to your boyfriend or girlfriend until after a divorce decree is entered.

If you have a Community Property Agreement you should check to see when it is effective.

  • Immediately, or one hour before the death of the first spouse to die

If you have a power of attorney and your spouse is named as your attorney in fact, you may wish to change that before filing a Petition for Divorce.

If you die before a divorce decree is entered without a Will, Community Property Agreement or a Trust, under the law of intestate distribution, RCW11.04.015, your spouse will inherit all of your community property, and maybe all of your separate property depending on whether or not you are survived by children, your parents or children of your parents.

A person seeking a divorce may also want to change the beneficiary of his or her life insurance before filing for divorce.

Also if you are going to file for divorce you may not want your spouse to be the beneficiary of your bank accounts or to have signature authority on your checking accounts.

Wills, Community Property Agreements, Durable Powers of Attorney and Powers of Attorney are not automatically revoked by filing for a Divorce.

However, entry of a divorce decree automatically revokes:

  • A Will as it pertains to a spouse - RCW11.12.051
  • Life Insurance as to a spouse unless prohibited by the language of the divorce decree - RCW11.12.051
  • A Durable Power of Attorney naming a spouse as attorney-in-fact is revoked by the entry of a divorce decree - RCW11.94.090
  • A Community Property Agreement - RCW11.07.010, 11.02.091(3), 11.02.005(15) is revoked by the entry of a divorce decree.


  • Persons Registered as Domestic Partners with the Washington Secretary of State's Office are treated the same as married persons for estate planning purposes.
  • The rights of Domestic Partners who live together without registering with the Secretary of State depend on whether a cohabitational relationship exists.
  • A cohabitational relationship involves more than just living together as roommates.
  • Judges determine if a cohabitational relationship exists by considering the following factors:
  1. The Parties Intent
  2. Statements about marriage
  3. Length of cohabitation
  4. Whether the cohabitation has been continuous
  5. Commingling and pooling assets
  6. What Estate Planning did they do?
  7. Did they have children together?
  8. Hold themselves out as married?
  9. Prior marriage not dissolved?
  10. Contribute to each other's assets?
  11. Quality of relationship
  12. Sexual relationship?
  13. Insure each other?
  14. Credit Cards in both names?
  15. Career paths

Differences between cohabitating and marrying:

  1. Cohabitants, as distinguished from registered domestic partners, cannot obtain support or maintenance
  2. Cohabitants cannot obtain attorney fees
  3. The Court has less discretion in dividing cohabitants property
  4. Cohabitants, as distinguished from registered domestic partners, are not intestate heirs

*Article by Daniel G. Marsh, pertaining to Estate Planning in Washington State.