Should my possibly divorcing parents update their Trust?

Dear Ms. Allison: So our parents are fighting all the time. It’s about many things, but one of the issues is their Trust. They did a Trust years ago when my mom was pregnant with my brother and I was 2 years old. From what they are screaming at each other, it seems they have never updated it. The constant fight is about her wanting to update it now and him wanting to wait in case they get a divorce – you know, to see who winds up with what. Really. They were smashing dishes in the kitchen and throwing the laundry at each other over this. I read your questions where you always recommend regular updating of estate plans and so I thought I would ask which is better – before a divorce or after it? Maybe I could print your answer and just put it on the fridge or something. Please don’t say my name. College Student in Oklahoma

Dear Student:
I am sorry for your pain and I appreciate your desire to help your parents’ situation. I will give you some general information, but please do remember that it is their responsibility to solve this. Do not blame yourself if they do not.

It is silly to think that on the off chance they were to divorce in the future that they should not update their estate plan now. However, if they are really getting divorced now and someone has filed the papers, they legally are not allowed to change ownership of anything, until the divorce is final.

They absolutely must obtain separate estate plans, after they divorce, if they do. However, to fight to the point of divorce over updating a current estate plan makes little sense. It appears that your father may have made up his mind and is just not ready yet to pull the trigger on the divorce, while your mother is trying valiantly to rein him in by investing in a joint plan. The fight is most likely not about the estate planning, but about the actuality of the divorce.

Ideally, people should update their estate planning documents every 3-5 years plus whenever there is a major change in their lives or property. “Major change” includes divorce, marriage, buying a new house, having a baby or adopting a child, and more. That is because, typically, when your life changes, what you own and how you own it also changes.

In fact, if your parents definitely are divorcing now, it would make sense to wait. Nevertheless, if there is only a possibility of divorce at some distant future point, it is pointless to wait to do the update. Not one of us knows how long we have on this earth. Likewise, no married couple ever really knows that they will never divorce. In short, if no one has filed for divorce, then do the update now.

There is another option to help with this. It is possible that your parents could hire a mediator to help them resolve this conflict. If they are careful to hire a mediator certified in Divorce Mediation, who is also knowledgeable about estate planning and taxation, they should be able to cover all the most pressing issues. The impartial mediator:
• Does not take sides but works with both sides to clarify the issues and problems, prioritize them, and generate alternatives to resolve them.
• Facilitates discussion about everyone’s interests, values and goals, as well as helping the parties stay focused on mutual solutions instead of becoming aggressive.
• Helps the disputing parties create their own solutions and make an agreement to abide by their choices.

A mediation approach is quicker, less combative, and much less costly than court. It can help your folks settle their issues, and if they do decide to file for divorce, the judge is quite likely to accept their mediated agreements – again, saving time, stress, and money. Most importantly, mediation can restore or build cooperative working relationships for the future. It is something to consider.

To learn more about divorce and estate dispute resolution, visit our website’s Mediation page.

That’s your question, Asked and Answered, Gale Allison, Mediator Attorney

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