Estate Considerations in Separation or Divorce
Are you going through a separation or divorce?
If so, you are probably thinking about these 4 things:
- Parenting your children: how you and the other parent will share parenting responsibilities and how you will make decisions for your children.
- Child support – how each of you will support your children financially until they are independent.
- Family Property – identifying, valuing, and dividing your family property, including what to keep and what to sell.
- Cash flow (what lawyers call spousal support) – how each of you will meet your expenses and how your incomes will be allocated between the two of you.
In my mind, it’s important to add a 5th item to the list: - Estate Planning – what happens if one parent dies?
- What expectations do you have for your children (and of the other parent)? Create a plan for what happens in the event of your death or the other parent’s death. This is particularly important if you have young children now.
Knowing how your children will be cared for and how the law treats the estates of newly separated or divorced parents is a key part of planning. Think about:
- When should you make a new will?
- Who should care for your children if both parents die (even at different times in your children’s lives)?
- How should your children’s relationships with your extended family be supported after your death?
- How would the surviving parent manage the day-to-day expenses of raising your children without contribution from the deceased parent? Consider making a plan and coming to an agreement now to avoid a court action later.
- Would you like to make arrangements to provide your children with a gift when they are older that is separate from what is needed while they are growing up?
These questions are part of the overall plan you’re making for your family’s future. While working through the first four topics above, find out if you and your former spouse are on the same page about what should happen if, for example, one of you dies while your children are young.
Unlike going through Court, the Collaborative Process gives you the chance to consider these questions, allowing you to:
- discover what is important to each of you
- gather the information needed to make decisions
- receive legal advice
- brainstorm for ways to put together post-separation plans
- build agreements for your property, finances, death and incapacity, and most importantly, for your children’s future.
When putting the pieces of your post-separation picture together, make sure you review any estate plan you have in place now, ask questions about what will happen if you don’t make any changes (or make a plan at all), and determine if you both agree on who should care for the children if both of you die or become incapacitated.
Alberta laws specify what happens if you have not made your own arrangements for your children and, sometimes, for your former spouse. To ensure that those you wish to provide for receive your gift without complication and that your children are well cared for, make sure you ask your lawyer about including estate considerations as part of your separation task list.
Over the last 15 years, I have been specifically developing skills using Collaborative Practice to help people resolve the issues that arise on separating from a spouse, including how to parent children, how to financially support children, how to allocate family property, and how to plan for the future.
