Divorce is undoubtedly one of the most overwhelming experiences people can go through. On top of the emotional and mental stress that comes with the ending of a marriage, there seems to be an endless string of weighty decisions to make and paperwork to sort through. As such, it’s easy to see how in the midst of a divorce, the last thing on a person’s mind is their estate plan. They’re caught up in dealing with their divorce, and it’s understandable that the last thing they want to think about is preparing for their passing. Yet, as unpleasant as it may be, once a divorce has been finalized, it is of utmost importance to revise your estate plan, or in some cases, draft an entirely new one.
When a married couple first has an estate plan created, usually it is done with the understanding that they will indeed remain married until one or both spouses pass on. As such, spouses generally appoint each other as trustees, guardians, administrators, etc. However, should a marriage disintegrate and end in divorce, these appointments must be carefully gone over again in a different light.
What follows here is meant to serve as an overview of some of the major points that need to be re-examined and modified in an estate plan once a divorce has been finalized.
Power of Attorney and Prior Directives
While the endings of some marriages are mutually peaceable, others are fraught with resentment and vindictiveness. But whether your divorce is amicable or not, it is imperative that you reconsider the designations you assigned within your estate plan. Generally, an estate plan comprises three key documents where individuals are appointed to act on your behalf.
Durable Power of Attorney—this is a document that allows the person whom you’ve named and designated to oversee and manage your monetary assets and legal affairs in the event of your death or incapacitation.
Power of Attorney for Healthcare—as the name implies, this is a document where you appoint a person of trust to make major medical decisions for you should you become unable to do so while living.
Living Will—this is a document that lets your attorney, family, and loved ones know of your requests if you are unable to do so yourself while you are alive.
At the time of drafting your estate plan, your ex-spouse or perhaps someone from their family may have been named in one or more of these documents. If this is the case, you can contact a probate lawyer near you and designate another person. Also, it is recommended that in circumstances that are particularly contentious, you should consider naming other people in your estate plan before the divorce proceedings are finalized.
A will is the document most closely associated with estate planning. A will lays out all of your wishes, financial and otherwise, in the event of your passing. As is common in marriages, you may have included your former spouse and perhaps even some of their family in your will. Divorcing your spouse does not mean that they are automatically excluded from your will. You must meet with a probate attorney and have the appropriate modifications made in regards to removing them from your plan. Failing to do this can result in your ex-spouse or their family filing a claim to your will despite the fact that you are divorced.
Moreover, your will includes the designation of an administrator to oversee your records and assets. If you named your ex-spouse to this part, they will remain as such until you meet with an attorney and have proper revisions made. Again, divorce does not automatically nullify your ex-spouse’s role in the execution of the instructions you have laid out in your will, only the removal of their name will do that.
When it comes to trusts within estate planning, many people choose to name their spouse or children as beneficiaries. However, in the event of a divorce, it is of utmost importance to meet with a probate lawyer to arrange for your documents to be changed, otherwise your ex-spouse will continue to be considered a beneficiary and can legally claim benefits from the trustee.
And this is another detail to consider. If you appointed your ex-spouse as a trustee, they can retain the power to manage and distribute your assets unless you have your trust documents properly modified and have an attorney remove their appointment.
Not all assets will make their way into an estate plan. It is important to note that holdings like life insurance or a retirement policy are part of entities that run their own accounts and policies which are separate from your estate plan. Placing these assets into a trust and appointing a beneficiary can ensure that your money will go wherever you want it to go. If these assets remain outside of a trust, they may end up going to your ex-spouse. Get in touch with a nearby probate attorney to make sure all of your financial resources are secured. Here are some other assets that you and your lawyer should go over:
-“Payable Upon Death” bank clause
-Investment accounts that transfer upon death
As a final note, you should bear in mind that many documents within an estate plan cannot be altered or changed until a divorce is finalized. During divorce proceedings, you may have to relinquish control over your financial assets. Though most people don’t think of it this way, a marriage is a legally binding contract, and when you or your spouse file for divorce, you are terminating that contract and everything has to be reset, so to speak. In any event, the best course of action is to contact your probate attorney. A qualified attorney will be able to guide you through the process of securing your affairs for the future.