Effects of Divorce on Estate Planning

Effects of Divorce on Estate Planning

Wills:
755 ILCS 5/4-7(b) provides that the dissolution of marriage or declaration of invalidity of marriage of the testator revokes every legacy or interest or power of appointment given to or nomination to fiduciary office of the testator's former spouse in a will executed before the entry of the judgment. Such a will takes effect as if the former spouse had predeceased the testator.

Trusts:
Trusts and Dissolution of Marriage Act ("TDMA"), 760 ILCS 35/1(a), provides that unless the Judgment of Dissolution of Marriage ("Judgment") expressly provides otherwise, judicial termination of the marriage of the settlor of a trust revokes every provision which is revocable by the settlor pertaining to the settlor's former spouse in a trust instrument or amendment thereto executed by the settlor before the entry of the Judgment, and any such trust shall be administered and construed as if the settlor's former spouse had died upon the entry of the Judgment.

This includes every present or future gift or interest or power of appointment given to the settlor's former spouse or right of the settlor's former spouse to serve in a fiduciary capacity.

This Act applies to all trusts created by a nontestamentary instrument executed after the 01/01/82, except that, unless in the governing instrument the provisions of this Act are made applicable by specific reference, the provisions of this Act do not apply to any (a) land trust; (b) voting trust; (c) security instrument such as a trust deed or mortgage; (d) liquidation trust; (e) escrow; (f) instrument under which a nominee, custodian for property or paying or receiving agent is appointed; or (g) a trust created by a deposit arrangement in a bank or savings institution, commonly known as "Totten Trust."

Life Insurance:
A former spouse who was designated the beneficiary on a life insurance policy is not barred from collecting the proceeds upon the death of the insured merely because they have divorced. Only if the property settlement agreement specifically includes termination of a beneficiary's interest will the right to proceeds of policy on life of insured spouse be affected, unless a statute or the policy itself provides otherwise. A mere general waiver of the marital property rights upon divorce does not effect the expectancy that former spouse has in a decedent's life insurance as designated beneficiary. [if the decedent was required to maintain life insurance for a child, that child will have an equitable interest in the policy.]
Allen v. Allen, 226 Ill.App.3d 576, 589 N.E.2d 1133 (2d Dist. 1992).

Joint Accounts:
With respect to a joint credit union account created while the decedent and survivor were husband and wife, the presumption of donative intent in the creation of the account was not overcome by the following: (1) an MSA expressing desire to settle all property matters but not specifically referring to the account; (2) "unfriendliness" between the decedent and survivor; (3) testimony of the decedent's son that the decedent had told him the money was to go to him; (4) fact that survivor had initially stated a willingness to assign her interest in the account to the estate; or (5) fact that the decedent was the only person to make deposits or withdrawals. None of such facts focused on or related back to the time of the creation of the joint tenancy.
Matter of James' Estate, 39 Ill.App.3d 938, 315 N.E.2d 569 (2d Dist. 1976).

CDs and Annuities:
TDMA did not apply to CDs and annuity. The spouse named as beneficiary in an employee savings plan or insurance policy has an expectancy interest that may be defeated in an MSA, but that agreement must include a clear expression of the spouse's surrender of that interest. A provision agreement stating that the former spouse was waiving "any and all other rights, including property rights," was not sufficiently specific to waive the surviving former spouse's interest as the named beneficiary of two certificates of deposit and an annuity which were owned by the decedent at her death, even though the decedent had sole control and ownership of the disputed instruments.
Deida v. Murphy, 271 Ill.App.3d 296, 647 N.E.2d 1109 (5th Dist. 1995)