OC Elder Law
How Divorce Affects Your Estate Plan
You don’t need an estate planning attorney to tell you that divorce is unpleasant in many ways; however, in addition to the negative emotional affects with which it is associated, divorce also impacts practical aspects of one’s life. For instance, divorce can impact an estate plan in various ways, including the following:
Wills and Heirs
Even in simple divorce cases where the sole heir was the former spouse, failure to designate a different heir results in the estate, in its entirety, reverting to the state. For this reason, both wills should be amended to reflect each party’s wishes regarding who should inherit in the event of their death.
It is particularly important to restructure the estate plan if the marriage produced children, as the latter make matters a bit more complicated than if no offspring are involved. In most cases, couples draw up a will at some point during their marriage, leaving the estate to children or grandchildren, typically in the form of a trust. Nevertheless, once the marriage is dissolved, assets change. This means that new trusts must be drawn to address the change in circumstances.
If divorced individuals do not amend the terms of their trusts in a timely manner, a former spouse may still have control over children or grandchildren’s allocated shares, thus giving that person access to funds in a manner that was not anticipated or intended. For this reason, it is essential to re-examine all potential claims to family assets, for the purpose of clarifying the grantor’s intent and keeping control of a particular trust out of the hands of a former spouse.
A married couple may also place assets into living trusts to enjoy tax advantages during their marriage. As one might suspect, the court divides such shares when the marriage is dissolved. However, it is possible for the language of the document to still give a former spouse a certain level of control concerning part of the trust that would otherwise go to only one spouse. Therefore, prior to the divorce, both parties should legally divide the joint trust into two separate trusts to ensure each person can rewrite the terms of his or her trust as desired.
Although it may come as a surprise, life insurance policies are frequently overlooked for quite some time after a couple divorces, unless one partner has plans to immediately remarry. Some individuals are even under the impression that the beneficiary automatically changes once the divorce is final. However, this is not the case. Rather, each couple must contact the insurance company and ask for instructions on changing the beneficiary. Otherwise, even if the couple is divorced, the former spouse can claim the full amount of the life insurance policy.
Designating a Health Care Agent
Finally, it is imperative to name a different person to act as one’s power of attorney and health care agent. If this is not done, the person’s divorced spouse may retain power to make medical decisions on behalf of his or her former husband or wife.
Ultimately, it is wise to seek the services of a qualified estate planning attorney in Corona, or Orange County who can advise you regarding how divorce affects an estate plan and how to avoid future problems by completing due diligence at the time the marriage is dissolved.