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Estate Planning After Divorce

Nov 2, 2022

So, you are officially divorced. In starting this new chapter of life, you should update your estate planning documents as soon as possible. You may no longer be legally married, but divorce does not automatically remove your prior spouse from your will, trust, or beneficiary designations. Here are some items to consider updating:

Change Your Advance Directives

When you engage in estate planning, it is standard to complete forms such as a health care proxy or living will. Often, spouses will choose each other as their agents for making health care decisions if they become incapacitated. After a divorce, your prior spouse may be the last person you want handling these matters. Change your documents to appoint someone you trust.

Update Your Power of Attorney

Another document you may have previously executed is a power of attorney. This can give another person a great deal of control over your financial affairs. If your current power of attorney names your prior spouse as your agent, you can revoke it and sign a new one choosing a different person to act as your agent.

Amend Your Will

Upon your divorce, your prior spouse would no longer qualify as a beneficiary under your will. However, if the prior spouse is named as an executor, that will still stand. Many couples designate their partner as the executor of their will. If you do not want your former spouse to be the executor, it is important to review and amend your will now to take him/her out. If your former spouse is named as a beneficiary, some states’ laws, like New York State, provide that in the event of a divorce your former spouse is treated as having predeceased you and therefore any disposition in your will to your former spouse would be void. However, you should still create a new will after a divorce. 

Trusts For Your Minor Children

Your will should include a testamentary trust for your children in order to protect assets from being irresponsibly depleted. Life insurance amounts or other assets placed in a trust will be managed by a person whom you can name as trustee. This will prevent the other parent, who could otherwise be in control of the minor children’s finances, from accessing those funds.

Be Aware of What Insurance You Are Required to Maintain

Many divorce settlements set forth that one spouse maintains life insurance and specifies who shall be a beneficiary of the policy. You should ensure your current life insurance policies not only comply with your divorce agreement, but also are not in danger of lapsing.

The same goes for medical insurance. If you are required to maintain medical insurance in a certain manner, review your plan to ensure the correct parties are covered and that it is in good standing.

Failure to comply with your divorce agreement can cause you to wind up back in court.

Review Your Beneficiary Designations

If you are not required to maintain your prior spouse as a beneficiary on your life insurance or retirement accounts, now is the time to update your designations. You should contact your insurance company or retirement administrator to make these changes. Upon your passing, the funds will go to whomever is listed as a beneficiary, even if that is the prior spouse from whom you are divorced.

Consult a New Estate Planner

The best thing you can do after your divorce is work with the Estate Planning Attorneys at Kommer Bave & Ciccone LLP to review your current documents and update them appropriately. Ideally, this person should have no connection to your prior spouse. Keep a copy of your divorce decree and settlement agreement handy. An estate planner will need to review it to evaluate what you need going forward.

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Estate Planning After Divorce

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