OC Elder Law
Understanding How Divorce Affects Your Estate Plan
Even the most amicable divorce is a difficult process for all involved. The dissolution of a marriage requires both partners to untangle complicated legal and financial matters. An estate plan is obviously based on the assumption that the marriage will continue. Therefore, if the relationship changes, the estate plan must change as well. Most estate planning attorneys recommend paying close attention to the following aspects in order to avoid unnecessary problems in the future.
Update Your Will
You should execute a new will and remove your spouse as executor of your estate. You must then decide how much you want to leave your spouse and what he or she is entitled to under the laws of your state. In some cases, disinheriting your spouse entirely may be a complicated process, as he or she has the right to contest the will and gain a specific percentage of your assets. However, it is ultimately up to you how much or how little you want to leave to your former marriage partner.
Change Your Health Care Proxy
Although the odds may be small depending on your age and other factors, it is possible that you may become ill or injured before your divorce is final. If a catastrophic event should occur, chances are you would prefer not to have your soon-to-be-ex listed as your health care proxy. Therefore, you should name a different person for this task as soon as possible.
Update Your Power of Attorney
You and your spouse may have executed powers of attorney in the past. If you chose durable power of attorney, you essentially gave your spouse access to your assets and accounts. This is a cause for concern, especially if your divorce is not amicable. The power of attorney given to your spouse should be revoked by your lawyer.
Ask your estate planning attorney about what you can and cannot alter. You may not be able to change pensions, retirement accounts, or life insurance beneficiaries until your divorce is final.
Amend Your Trust
If the laws in your state allow you to make amendments to your revocable trust, these should be made without delay. Similar to your will, the primary question you must answer is how much money and assets you wish your spouse to receive. You may decide to remove gifts for his or her family or make other change as well. However, the most important issue with regard to trusts is provisions for minor children: you may not want your spouse having access to and managing their money. If this is the case, have your estate planning attorney create a revocable trust that names an individual you have selected as the trustee. Otherwise, if you die, your spouse will automatically gain control of your children’s money.
Review Prenuptial and Postnuptial Documents
You should review your prenuptial agreement in light of your divorce. This document will state exactly what your spouse is entitled to should you pass away. When you draft a new estate plan with your lawyer, it must be consistent with your prenuptial agreement terms.
Reviewing Your Estate Plan After Your Divorce
Your estate plan should be revisited once you receive your final divorce decree. This is because changes made during the process are often only temporary from a legal standpoint. After the dissolution is complete, review all documents with your estate planning attorney to determine which parts require post-divorce updating.