By Lyle Solomon
Divorce affects your present life and future plans, including your estate plan.
If you made a will while married, you most likely left money and assets to your spouse. You may also have designated your spouse to manage finances and make health care decisions in the event of your death. However, you probably don’t want your ex taking your money after divorce. But that’s what might happen if you don’t update your estate planning documents.
Even if you’ve never prepared any estate planning documents, your ex is probably the beneficiary of your insurance policies, retirement savings plan, or “payable on death” bank account. This means that unless you name someone else, your ex will most likely receive the money.
Here are a few documents that may need to be updated as a result of your divorce.
If you’ve created a revocable living trust for yourself or a trust for your kids, you should review these documents before or during your divorce.
Many couples establish joint trusts or appoint each other as trustees to monitor the assets in the trust after one spouse dies. Your ex-spouse could also be a beneficiary of your trust.
If you do not update your trust, your ex-spouse could inherit your assets. Alternatively, your ex could control how your money is spent on your children.
You may be able to prepare a fresh will and estate planning documents during the divorce proceedings, or you may have to put it on hold until the divorce is finalized. There are several compelling reasons to write a new will after a divorce or to prepare a will for the first time:
If you created the will while married, your state might disregard the section of the will in which you left wealth and assets to your ex. However, relying on this is risky and those clauses will be enforced if your will also leaves things to your in-laws.
Your will also appoints someone as your executor or administrator, who will be in charge of dealing with paperwork and distributing your assets. If your will mentions your ex as executor, they can handle your assets even if both of you aren’t in touch with each other.
If you and your children’s other parent die, your present will may appoint someone to act as guardian for your children. The court will make the final decision, but if your will mentions your ex-brother-in-law, who now despises you, there’s a decent chance he’ll be raising your children.
You must first revoke your old one and create a new one to amend your will. Never attempt to alter a will by cross-outs and writing in the margins.
Advance Directives and Power of Attorney
When making a will, it is customary to sign additional documents such as advance directives and powers of attorney. These documents ensure that if you become incapacitated, someone you appoint will be able to make medical decisions, legal decisions, and financial decisions for you.
Advance directives also state your preferences for being kept alive by life support if you become vegetative. If you have designated your spouse or a close relative of your spouse to make these important decisions, you should also update these documents.
When someone dies, many things are not an integral part of the “estate” that are passed down through a will. Instead, upon your death, these assets are distributed to the beneficiary you’ve designated, even if that beneficiary is your ex. These are some examples:
- IRAs, 401(k)s, pensions, and retirement accounts
- Accounts with a “payable on death” provision
- “Transfer on death” investment accounts
After your divorce is finalized, contact the financial institutions and insurance companies that hold your accounts and policies. Know who is your beneficiary and, if necessary, update this information. Don’t presume that your beneficiaries have been updated simply because you have received something in the divorce decree.
Divorce alters your equation with your ex and former in-laws, but it does not alter your estate plan. To prevent unnecessary problems in the future, update your powers of attorney, wills, trusts, and beneficiary designations to reflect your new life.
Lyle Solomon is a payday loan crusader and the principal attorney at Oak View Law Group in California. As a consumer finance attorney, he has written several legal and financial articles. You can connect with him on LinkedIn or tweet him at @lyle_solomon.