How Divorce Affects Your Estate Plan – While your divorce is ongoing, make sure to meet your legal obligations to your spouse while exercising as much control over your assets as possible. Financial law is full of provisions designed to protect your property if anything happens to you, which is just as important during a divorce as it is at any other time.
Here are eight things you need to do:
- Update your health care proxy. Who will make health care decisions for you if you cannot? Your health care proxy is probably your spouse, so ask yourself whether you trust your spouse to act in your best interests.
- Change your power of attorney. If you have a durable power of attorney, it gives your spouse access to all your accounts and assets — even assets that are in your name only.
- If the divorce isn’t amicable, you’ll probably want to revoke the old power of attorney and draft a new one.
- Find out what you can and cannot alter. You might not be able to change beneficiary designations on life insurance, retirement accounts or plans such as your 401(k) and pensions at will. In some states, the designations have to stay until the divorce is final.
- Filing for divorce places an automatic restraining order on your assets, including beneficiary designations.
- Update your will. If your state allows you to execute a new will, do so. Do you want your current spouse in charge of your estate? You may want to remove him or her as executor.
- How about guardianship of minor children? You can name an alternate guardian.
- Decide what to leave your spouse. If you disinherit your spouse completely, you can expect a legal battle. In many states, it’s impossible. Leave your spouse only what he or she is entitled to under the laws of your state.
- Review your prenuptial or postnuptial agreement. This will tell you what your spouse is entitled to in the event of your death.
- Amend your trust. If your state allows, amend your revocable trust. The key issue is what assets to leave your spouse.
- You may want to remove gifts for her or his family. If the trust makes provisions for your ex-spouse’s children or other relatives, these provisions will stand.
- Reexamine trust provisions for young children. Do you want your spouse managing and having access to monies for your children?
- Should you have a revocable trust that will name someone as trustee? Otherwise, your spouse is your children’s guardian and he or she will have the right to access and control your money for them if you die.
- Revisit the plan after the divorce is finalized. Once the divorce is set, revisit the estate plan to see what needs to be updated.
- Don’t overlook beneficiary designations. If your ex-spouse is named to inherit the assets, it can result in litigation and unintended consequences.
Make sure your estate plan reflects your life change. You may consider yourself to be a single person during the course of the divorce, but until the proceedings are over, the law does not.
It’s not likely that you’ll die or become disabled while the divorce is ongoing, but that’s no reason why you shouldn’t move as quickly as possible to protect yourself and your estate from your spouse’s control. Discuss your needs with a trusted estate attorney. Share your divorce agreement when it becomes finalized so that your estate attorney will know what obligations you have to your ex-spouse.
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