Estate Planning and Divorce: What You Should Know

Divorce is never easy. It’s not just a difficult time for all involved emotionally, but there’s also a lot to do and a lot of decisions that have to be made. You’re going to need to take a look into your estate plan. It might be a plan in the back of your filing cabinet that you and your present spouse implemented 10 years ago or the plan you never signed. In any case, take care of your plan now.

While the divorce is progressing, your present spouse has specific rights. You want to make sure you reach your legal responsibilities to your spouse at the same time exercising as much management over your assets as you can. If you pass away or become incapacitated before the divorce is finalized, you want to keep as much control as you can. The following are 8 things you’ll need to do:

1. Update your health care delegate. If you’re in a car accident and end up in intensive care, who is going to make health care decisions on your behalf? Most likely you have a health care delegate establishing your spouse to make the decisions, that may not be what you want when you’re in the middle of a divorce.
2. Change your power of attorney. You both probably carried out powers of attorney at some time. Try and remember where they are, and if you can’t, ask the attorney who might have drew them up for you. If it’s a durable power of attorney, it granted your spouse access to all your accounts and assets presently while you are capable. This comprises of access to assets solely in your name. This should be a concern to you, specifically if the divorce isn’t an amicable on. You need to reverse that power of attorney, carry out a new one and maybe notify your present spouse of the reversal. This is usually done using your attorney.
3. Find out what you can and can’t change. In a lot of states, you won’t be allowed to alter the beneficiary delegation of life insurance, retirement plans (401k’s), and pensions throughout the divorce. Those delegations usually must remain in place until the divorce is finalized. The filing a complaint for divorce places an immediate restraining order on the assets, that will include changing beneficiary titles.
4. Update your will. If your state enables you to carry out a new will, you should do it. Do you really want your present spouse controlling your estate? Remove them as executor. And what about the guardianship of minor children? You probably won’t be allowed to stop your present spouse from taking over as the guardian of the children if you die (unless they are determined by the court to be unsuitable); nevertheless, you can unquestionably name a different guardian.
5. Decide what to leave your spouse. Should you renounce your spouse? There are subtleties to think about. In a lot of states, you can’t renounce your spouse completely. If that happens, they will have the right to challenge the will and get a specific percentile of your assets. Occasionally clients will leave their spouse only what they’re entitled to get under the laws in your state. This is simple and clean. Other clients approach it aggressively and renounce them knowing that they will challenge. They want to witness their spouse having to fight for the money. The decision is yours.
6. Look into your prenuptial (or postnuptial) agreement. If there is a prenuptial agreement in place, your divorce attorney expectedly reviewed it, considering your divorce (if not, think about different counsel). Be sure you also look at your documentation and see what your spouse is entitled to if you pass away. The new estate plan needs to be uniform with the conditions of the prenuptial agreement.
7. Revise your trust. If your state enables you to revise your revocable trust, do so at once. As with the will, the primary issue is what assets you’re leaving to your spouse. If there are gifts for their family, you may want to take those out. A large issue to think about is trust conditions for young children. Do you want your spouse controlling and having access to capital for your children? If there are minor children involved, you need to have a revocable trust that designates an individual of your choosing as trustee. Apart from that, if your spouse is their guardian, they will gain the right to access and control your assets for them if you were to pass away.
8. Review the plan following the divorce being finalized. Estate planning in the middle of divorce is usually a temporary measure. After the divorce is finalized, you need review your estate plan and find out what should be updated considering the divorce. Also, don’t ignore those beneficiary titles. We often come across estates of individuals that pass away never having updated their beneficiary titles. Their ex-spouse is still designated to inherit the assets. This could result in legal proceeding and serious unintentional outcomes.

Source:

1. Fletcher, C. (2018, June 20). 8 Estate Planning Moves If You Are Getting Divorced. Retrieved September 08, 2020, from https://www.forbes.com/sites/christinefletcher/2018/06/19/8-estate-planning-moves-if-you-are-getting-divorced/

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Regardless of the choice you make, it’s important you make the best choice for you when hiring a divorce attorney. Remember: The decisions you make now can affect your future. Ultimately, choosing the best lawyer will depend on which lawyer feels best for you and your situation.

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