There's no other way to say it: getting a divorce isn't easy. It's a major life change that requires some digging into legal documents to ensure you are protected. If you are beginning the process of getting divorced, you should create your estate plan or amend your existing plan to make sure it reflects this change to your life circumstances. For estate planning purposes, you are likely to be considered married until the final court order is signed, ending the marriage officially.
If you die or become incapacitated after you’ve decided to get divorced but before the final divorce decree, your estranged spouse may still control your life decisions and your estate. Below are some things to think about.
1. Update your Will
If you created a will or living trust while you were happily married naming your spouse as an estate beneficiary, and now you intend to get divorced, the will or trust which benefits your spouse is still in effect. Once you have firmly made the decision to divorce, you should amend your will or trust so that your estranged spouse will not unintentionally receive a significant inheritance from your estate.
2. Update your health care documents
Review and update any health care legal documents in effect. Once the decision to divorce has been made, you may not want your spouse making all of your health care decisions and having access to all of your medical records. Revoke any old health care documents and execute new ones designating the people that you trust the most to make your medical decisions in the scenario that you cannot make these decisions yourself.
3. Revoke your existing power of attorney or create a new one
If, while you were married, you signed a general durable power of attorney giving your spouse the authority to act as your agent on financial matters, you should revoke that power. A new general durable power of attorney that you sign may automatically revoke any previous general durable power of attorney that you had previously signed.
4. Revisit your life insurance and other beneficiary designations
While you may update your will or trust when contemplating divorce, a change to your last will or living trust does not override any beneficiary designation that you made on your life insurance. If you are in the process of getting a divorce, you will want to consider filling out new beneficiary designation forms for all of your life insurance and eliminate your spouse as a beneficiary.
5. Review your children’s inheritance
Ensure that your spouse doesn’t control your children’s inheritance. If your minor children inherit from you, your children’s other parent will likely be in control of your children’s inheritance while they are a minor.
If you do not want your ex-spouse to be in control of your children’s inheritance, consider setting up your estate plan in a way that your minor children’s inheritance goes into a trust when you pass away. Also, name someone other than your spouse as the trustee of that trust.
Do not wait - get started today
If you expect to get divorced, you should not wait until the divorce becomes final to review and revise all your estate planning documents. Even though your divorce is not final, you can provide that someone other than your spouse will have control over you and your estate, and you can limit the rights that your estranged spouse will have as a beneficiary of your estate.