Re-Calibrating Estate Plans After A Divorce

Divorce is never easy. Even when things end amicably, the resulting legal proceedings can be incredibly stressful. In addition to the emotional difficulties faced when a marriage ends, divorced people also need to address their estate plans. While they may have created Wills or Trusts and arranged for end-of-life care with each other, it’s important to update estate plans to reflect the divorce. As hopes and dreams for the future change, estate plans should be adjusted and maintained accordingly.

Consider your own Will and Trust

Would you want your former spouse in charge of your assets should you pass away unexpectedly? If the answer is no, you may want to remove them as Executor and Trustee. In most cases, a divorced person would not want to leave a former spouse any portion of the estate. It’s essential to work with an estate planning attorney to understand what portion of an estate the former spouse may be entitled, to and to ensure that an estate plan both reflects the laws of your state, and reflects the planner’s goals moving forward following the divorce.

If a divorced couple has minor children, it is unlikely one former spouse would be able to keep the children from having the other former spouse as custodial parent upon death. Of course, courts will remove kids from unfit homes, but so long as a former spouse provides a healthy environment for children, the former spouse will be granted custody of the children. State laws vary, but most states consider the best interests of the child when making any custody or guardianship determination.

Another item to consider during or following a divorce is to review any Trusts created during the marriage. If state law permits the Trust to be amended, then it should be amended as soon as possible to makes sure protections are in place for each spouse’s assets. Consulting an estate planning attorney may ensure that the plan is modified and administered appropriately during or following divorce proceedings.

Many couples have prenuptial or postnuptial agreements in place in the event of a divorce. A divorce attorney will review these documents and gain further insight into what a former spouse may be owed upon death. Any new estate planning should be consistent with the terms of the prenuptial or postnuptial agreements.

How soon should I plan to make changes?

You should get started with your estate planning changes as soon as you know you’re getting a divorce. Some changes may need to wait until the divorce is finalized, but it’s important to get the ball rolling while you’re separated. When reviewing estate plans during or following a divorce, it’s also important to review beneficiary designations to make sure a former spouse will no longer benefit from that asset upon death. Please contact Wilson+Miller today for a consultation. 501.221.7776.

Leave a Comment