CA Estate Planning Blog

Friday, November 22, 2019

Updating Your Estate Plan Post-Divorce

Will divorce negate my will?

Every year, over 750,000 people will file for divorce, according to the National Center for Health Statistics. If you are one of the hundreds of thousands of Americans who have divorced or will divorce this year, you will need to make updates to your estate plan. Chances are your estate plan lists your spouse as the recipient of your assets, as well as your power of attorney in the event of your incapacity. Failure to update your estate plan after a divorce can create much confusion and even potentially result in your ex-spouse continuing to play a role in your life and death which you would not have wanted.

Be Sure Your Estate Plan Complies With Your Divorce Agreement

At times, your divorce decree may dictate that certain of your assets go to your ex-spouse in the event of your death. Further, you may have ongoing obligations to your ex in the form of alimony. While most alimony is terminated upon the death of the payor, some divorce decrees declare otherwise and back owed alimony will likely still be owed by the estate. Bring your divorce agreement to your estate planning attorney so that he or she can ensure your estate plan is in accordance with the divorce decree.

Update Your Powers of Attorney

Your estate plan should include a power of attorney, naming a trusted individual to manage your finances if you are incapacitated, and a health care proxy, who will make health care decisions on your behalf. Most married couples will name their spouse to be their power of attorney. If you divorce, you will need to update this designation. Consider naming a trusted relative or friend to fill your power of attorney role.

Change Your Will or Trust 

You will want to remove any provisions giving assets to your ex-spouse in your will or trust, except for those still required per the divorce agreement. You will also want to remove your ex as your will executor or trustee, replacing him or her with a trusted relative or friend. You may also need to reconsider your provisions for your minor children in the event of your death.  While your ex-spouse will likely remain the guardian of your minor children should you pass away, you may want to create a trust for your minor children so that your ex does not control your children’s finances. Your estate planning lawyer will provide you with a more detailed explanation of steps you may need to take to ensure your family and assets are protected post-divorce.

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