Divorce can be a tumultuous time spent worrying about your kids, your money and your future. Estate planning is usually not high on the to do list. However, addressing your estate plan is an important piece of a divorce. Attorney Jan Myskoski’s recent New Hampshire Bar News article Get Out of My Will: Estate Planning and Divorce reviews the planning process before, during and after. 

Important take-aways from Attorney Myskoski’s article include:

  • Disinheriting a spouse is difficult, but you can limit an inheritance to the statutory share provided under RSA 560:10.
  • The anti-hypothecation issued in a divorce prevents a party from "selling, transferring, encumbering, hypothecating, concealing, or in any manner whatsoever disposing of any property." However, the recent case of Elter-Nodvin v. Nodvin made clear that the anti-hypothecation does not restrain changes to life insurance beneficiaries, wills, and durable powers of attorney because there is no transfer of ownership while the party is alive. 
  • While RSA 551:13 revokes provisions in a will or revocable trust in favor of a former spouse, changes to durable powers of attorney and beneficiary designations under life policies, retirement accounts and the like must be directly modified. Otherwise, under Kennedy v. Plan Administrator, your former spouse will inherit your money. 

Yesterday Maine voters repealed the state’s same-sex marriage law, six months after the law was passed by the legislature. In doing so, Maine became the thirty first state to oppose same-sex unions in a popular vote. Five states, Iowa, Connecticut, New Hampshire, Massachusetts and Vermont are performing same-sex marriages, with the District of Columbia and New York recognizing the marriages but not performing them. New Jersey and California allow for civil unions.

Question 1, brought forward pursuant to the “people’s veto” process in Maine’s constitution, asked voters “Do you want to reject the new law that lets same-sex couples marry and allows individuals and religious groups to refuse to perform these marriages?" 53% of voters approved Question 1, about the same margin of victory as California’s Prop 8. Maine’s same-sex marriage law was put on hold after the proponents of Question 1 collected the required signatures to put the question to a popular vote.


What does this mean for Maine residents? Same-sex partners are still vulnerable without the financial and legal protections that a civil union or marriage offers. Maine’s same-sex couples must be very detailed in their estate planning, partnership agreements, and legal status as parents of any children of the relationship. Additionally, Maine residents must carefully consider the ramifications of seeking a civil union or marriage in other states. Although New Hampshire and Massachusetts are just quick drives across the Piscataqua River, entering into a legal relationship that cannot be dissolved in your own state can have very dire consequences.