Your Divorce Agreement Could Create Estate Planning Obligations

 Posted on August 29, 2019 in Estate Planning

As we all know, not all marriages stand the test of time, and a divorce can be a messy undertaking. In previous posts, we have discussed in a fair amount of detail how a divorce can affect a person’s already existing estate plan. In most cases, the divorce will nullify any provisions that pertain to the person’s spouse. But, did you know that the terms of a divorce settlement agreement could create obligations for a person to meet in his or her estate plan in the future? A recent ruling by an Illinois appeals court shows how such a thing could happen.

A 33-Year Old Divorce Agreement

In the case in question, a couple got married in 1963, had six children together, and got divorced in 1982. As part of their divorce settlement agreement, which was entered as part of their divorce judgment, each party agreed to create a will that left 50 percent of their estate to be divided equally among their six children.

In 2014, while suffering from a bone marrow disorder, the husband executed a new will and restated a trust, of which his new spouse was named a co-executor and co-trustee along with another person. The husband died three months later.

When the man’s will was presented for probate in 2015, his six children discovered that they had not been left 50 percent. As a result, they each filed a claim against the father’s estate for one-sixth of 50 percent of the man’s estate.

Unenforceable Judgment or Permanent Injunction

The co-executors of the state responded on behalf of the estate, claiming that the provision in the divorce judgment regarding the man’s will was no longer enforceable because it had not been enforced within seven years, nor had it been revived through formal proceedings. In most cases involving money judgments in Illinois, the judgment becomes enforceable after seven years, but an unenforceable judgment can be revived. The probate court agreed with the respondents and denied the children’s claims.

The ruling was reversed on appeal earlier this month. A three-judge panel of the First District appellate court determined that the rules regarding enforceable judgments apply in situations where a party is ordered to pay something to another party. For the purposes of this case, the man was not ordered to pay his children a specific amount of money, the court held. Instead, he was ordered to create a will that bequeathed a certain percentage of his estate to his children. The court ruled that difference made the provision of the divorce judgment a permanent injunction that does not require revival in order to be enforceable after seven years. The case was sent back to the circuit court for additional proceedings.

Work with a Lombard Estate Planning Lawyer

If you are divorced and your divorce agreement contains terms that could affect your estate plans, contact an experienced DuPage County wills and trusts attorney. Call 630-426-0196 to discuss your situation with a member of the team at A. Traub & Associates today. We can provide the guidance and direction that you need.

Source:

https://courts.illinois.gov/Opinions/AppellateCourt/2019/1stDistrict/1181716.pdf