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Lamar Odom and the Risk of a Non-Finalized Divorce

Jessica Fagan HHRBy Jessica Reece Fagan, Hedgepeth, Heredia & Rieder

Divorce is an overwhelming process, emotionally and financially. And the last thing many people want to think about during the process is another emotional topic: catastrophic injury and death. But as the ongoing tragedy of Khloe Kardashian and Lamar Odom highlights, it is a topic that should be addressed.

 

While most are familiar with the context of a will, a document to dispose of one’s assets upon death, not everyone is aware of the use of a durable power of attorney and an advance directive for health care. 

  • A durable power of attorney allows you to appoint an agent to handle your property in the event of your incapacity. 
  • An advance directive for health care allows you to appoint an agent to make health care decisions for you if you are unable to make them yourself and allows you to indicate your end of life treatment preferences when you are unable to make such decisions for yourself.  This document has replaced the old health care power of attorney and living wills over the last several years.  

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Georgia has a statutory form for advance directives for health care. The person designated as the health care agent will make health care decisions, and/or direct the withholding or withdrawal of life-sustaining procedures and/or the provision of nourishment or hydration.

When there is no advance directive for health care in place, however, the right to make medical decisions falls to family members, generally in the following order: spouse, adult children, parent, siblings, and then other family members.

 

As highlighted by the Khloe Kardashian and Lamar Odom situation, when a divorce is not finalized, or when an advance directive for health care has not been updated, that person will still have the legal right to make medical decisions.

 

It is unclear as an outsider, of course, whether Ms. Kardashian is making decisions because the divorce is not final and she is still legally his wife, or if it is pursuant to a power of attorney or an advance directive for health care. What is clear from news reports is that Ms. Kardashian – his soon-to-be ex-spouse – is the only individual in the world who legally had the power to make decisions for Mr. Odom while he was unconscious and while he remains in critical care.

 

In Ms. Kardashian and Mr. Odom’s case, this may not be a terrible situation—at least in front of the camera she seems to truly care for him and reports indicate he is recovering. But for other divorcing couples, the concept of an estranged, soon-to-be ex making decisions around whether to keep one on life support over the rest of his family’s wishes is downright terrifying.

  • In addition to the right to make medical decisions, a spouse in a non-finalized divorce may also find themselves entitled to certain monetary benefits.
  • If a soon-to-be-ex spouse has not updated his or her will or beneficiary provisions (regarding life insurance, retirement accounts, etc.) and then dies unexpectedly, such assets could go to the ex-spouse and leave an estate in costly probate litigation sorting out the donative intent under the terms of a will and a divorce settlement agreement. Accordingly, if a person is contemplating divorce, it is critical to get these issues addressed.

 

“We advise our clients to review their estate planning documents whenever they are anticipating a life-changing event such as a marriage, divorce, or new child,” says Brent Howard, an attorney with Bryan Cave in Atlanta whose practice includes estate planning. “Such events typically change the client’s desired estate plan and the appointment of people they trust to handle either their estate plan in the event of death or their finances and medical decisions in the event of an incapacitation.” 

 

Timing is important, however. Once a divorce is filed, most counties in Georgia have an automatic domestic relations standing order that prevents either party from changing the financial status quo, which often is interpreted as changing the beneficiary designations on legal documents.

 

Generally speaking, it is permissible to update a will, power of attorney and/or an advance directive for health care during a divorce.

  • But even if the will is updated to exclude a soon-to-be-ex spouse, a surviving spouse may still have some rights to the estate under law, should the other spouse die while a divorce action is pending but has not been finalized. 
  • Georgia does not require a married individual to leave anything to his or her spouse, but a surviving spouse can petition the court for an award of year’s support.  (Year’s support is a creditor claim against the deceased spouse’s estate equal to support for the spouse for a year.)

 

“If a married individual is considering a divorce or separation, the individual should update his or her estate plan to prevent the estranged spouse from having legal authority over his or her finances and health care decisions prior to the final order dissolving the marriage,” advises Howard.  “Even though the new plan can also disinherit the spouse in the event of death prior to the final order of dissolution, it is still subject to any spousal share required by state laws.”

 

In sum, life can change in an instant. If you are considering divorce, it is strongly recommended that you meet with your attorney prior to filing to not only discuss the reality of a divorce action, but to discuss the terms of your estate planning documents, as well. A person is well-advised to ensure that their intention and desires remain intact regardless of their mental capacity.

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