Estate planning: what the lawyer reads before the first call

1. 1 They say an account or policy still names a former spouse

   “Our wills are from before we moved here from Ohio, and my 401k still lists my ex-husband.”

   Check the beneficiary form first: the form, not the will, is what the plan or insurer follows. For most employer retirement plans, including most 401(k)s (governed by ERISA), check whether the form on file still controls: the plan pays whoever the form names, state laws that cancel an ex-spouse’s designation after divorce generally don’t reach them (Egelhoff v. Egelhoff, 532 U.S. 141 (2001)), and a waiver in the divorce decree may not stop the plan paying the named person (Kennedy v. Plan Administrator, 555 U.S. 285 (2009)). The form itself may need changing with the plan or insurer.

   Ask

   • Which account or policy is it: an employer plan such as a 401(k), an IRA, or an individual policy?
   • Did the divorce decree or settlement say anything about it?

2. 2 Minor children, and no guardian chosen yet

   “We have two kids, one still in high school.”

   If no guardian is named, a court may choose who raises minor children. What they inherit may also need someone to manage it until they’re older.

   Ask

   • Who would they want to raise the children, and who is the backup?
   • Who should manage money left to the children, and until what age?

3. 3 There’s an earlier marriage, or children from an earlier relationship

   With children from more than one relationship, leaving everything to a spouse can leave some of them out, depending on who outlives whom. A spouse’s rights can also limit what can be left to others.

   Ask

   • Whose children are whose, and who should inherit what?
   • Is there a prenuptial or postnuptial agreement?

Documents to ask for

• Current beneficiary forms for each retirement account, annuity and life insurance policy
• Any divorce decree or settlement agreement
• Any existing will that names a guardian
• Any prenuptial or postnuptial agreement