How Divorce Affects Estate Planning and What to Do About It

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by Chris Torrone

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03.16.2022

Divorce tends to change just about every part of your life in one way or another. It impacts your routines and home-life, your parenting, your plans and hopes, your relationships and certainly your finances. It’s important, when preparing for your future during the divorce process, that you make every effort to revise all estate planning documents completely. 

Many things change when you get divorced. And the need for change in your prior arrangements is imperative in order for you to maintain financial independence, establish a healthy financial legacy for your children and other beneficiaries, plan for retirement, invest with confidence, create and follow a budget, and generally, plan for the future. 

In this article, we’ll look at a handful of important estate planning documents to update when you’re divorcing. Don’t wait until later. The sooner you take care of it, the better, both for you and your family. 

What is an Estate?

In the simplest terms, an estate is all the money and property owned by a particular person, more specifically, at the time of death. This includes every asset, such as bank account balances, investments, real estate, automobiles, boats, and recreational vehicles, stocks, bonds, mutual funds, retirement accounts, life insurance policies, and other insurance, ownership in any business enterprises, and more.  

What is Estate Planning?

Estate planning is the process of arranging for the management and disposal of an individual’s personal estate during the person’s lifetime to prepare for the eventuality of this person’s incapacitation or death. Generally, there are 5 areas commonly considered during estate planning: wills, trusts, Power of Attorney, healthcare, and Beneficiary Designation.  

divorced man working on estate planning

How Does Divorce Affect My Estate?

Divorce changes your relationship with your ex and your former in-laws, legally, but it doesn’t automatically alter your estate plan. Leaving your documents and asset planning untouched during this time can have severe consequences for you and your family. 

Even if you separated amicably, and remain friends, it isn’t a good idea to leave well enough alone. Feelings change over time, priorities must do so as well, and you’ll want all your plans to reflect your desires for the future and the well-being of you and your family. 

Take the time you need to meet with your Estate Planning Attorney and go over every detail of property, investments, accounts, debts, retirement, wills, powers of attorney, beneficiaries, and all other matters related to your estate. Set your family up for health and success right from the start. 

Let’s look now at some important estate planning moves to take care of when divorcing. 

1. Find Out What You Can and Cannot Alter

This may sound obvious, but it’s an important initial step. In most states, things like beneficiary designations for life insurance and retirement accounts can’t be changed during divorce. You’ll need to wait until after the divorce is final. Research your state’s rules and always consult your attorney for the best course of action. 

2. Update Your Will

Apart from the rarest of situations where ex spouses remain tremendous friends, we’re guessing you don’t want your ex to be in control of your estate upon your death. Take the time to completely change your will so you remain in control of your future. 

Decide on a new executor, update your directives, your burial and service arrangements, and any special communications for your children, family, and friends. Stay in control of your legacy. 

3. Update Your Power of Attorney

At some point, the two of you most likely executed powers of attorney. You’ll need to locate these. In the case of a durable power of attorney, your spouse would have full access to all your accounts, even now. This is a potentially dangerous arrangement, especially if the divorce was not amicable. 

You need to revoke the existing power of attorney, then create a new one and possibly send notice to your ex that the previous one has been revoked, and the arrangement changed. Your attorney will guide you in this process. 

woman considering a change to healthcare within estate planning

4. Update Your Healthcare Proxy & Advanced Healthcare Directive

We’re guessing now that you’re divorcing, you don’t want your ex making important medical decisions for you. It’s time to draw up a new document for your medical proxy and Advanced Healthcare Directive (AHCD) in case you are seriously injured, sick, or unconscious. 

You’ll want to choose someone you trust implicitly, someone with a level head, wisdom, your best interests in mind, and one who will follow any medical requests completely, which you’ve made in your will and directives regarding healthcare. 

5. Update Your Trust

If allowed by your state, update your revocable trust. This concerns several things, including monies and gifts committed to specific individuals. It is likely your wishes in this area have changed. Change what you can immediately so that your directions reflect your new life and desires. 

6. Get Organized

This sounds simple, but it’s an important detail. Once you’ve updated your estate documents and plans, file them in an orderly fashion in one or even better, several protected places like a waterproof and fireproof safe, a safe deposit box, probate court or administrator’s office, office of your attorney, and a trusted online document storage service. 

Conclusion

We’ve only touched the surface of a few of the most important plans to update when you divorce. The important thing is that all your plans reflect your new life path, your personal and family’s well-being, your wishes for your assets and communications, and the integrity of your legacy. 

Always team up with an experienced and trusted lawyer or firm, to help you through every step of the process, during divorce, estate planning, and custody cases. This will help you avoid common mistakes, protect your estate, and build the foundation you want for the years ahead. 

Torrone Law helps individuals and families navigate separation, divorce, custody, and family planning, with confidence, ease, and peace of mind. We help restore your family to wholeness. Connect with us today for a free consultation to learn more. 

For answers to some estate planning questions, see our FAQs below. 

FAQ

Why is changing my estate documents important when I divorce?

Your estate involves so many things, your will, your healthcare requests, your financial and personal plans, important notes and communication, income and investments, childcare and so much more. Neglecting your need to update these things leaves you vulnerable to losing control of your estate to your ex and their family. 

How do I know what I can change and how to change it?

Every state has their own rules regarding things like wills and trusts and other estate documents. You’ll need to consult with a lawyer and seek information online from government sites and in-person at your local court. 

Your attorney can help with the details of changing your documents. If you can’t afford an attorney, you can pursue limited legal advice from individuals offering pro bono (free) services to financially challenged individuals. 

 

What are some common documents that need changing during divorce?

Wills and trusts, powers of attorney, healthcare directives, all insurance and accounts involving beneficiaries, titles and deeds, and more. 

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