Nobody likes to think about the possibility of divorce early in a relationship, but when a marriage is over, it’s over. When it’s time for you and your partner to go separate ways in life, it opens up a whole new realm of legal issues that you'll need to consider when moving forward.
One thing that's easy to overlook is your estate plan, and the effect that your divorce will have on your children, heirs, or other beneficiaries.
A divorce automatically has some effects on your estate plan that cannot be ignored, but there are some other aspects that may require careful attention to ensure your final wishes are followed and your assets are distributed the way you wish them to be.
How Divorce Changes Your Estate Plan
When you get a divorce, some changes to your estate plan are automatically made by state law. The dissolution of marriage causes these key things to happen:
- Your ex-spouse is disinherited. Any provisions in your will that include your former partner are no longer valid.
- Your ex-spouse loses power of attorney. If you have a power of attorney, health care proxy (living will), or another document that grants decision-making power to your former spouse, these rights and privileges will all be revoked.
- Any other revocable responsibilities are removed. Your ex-spouse will be removed as the appointed personal representative to your estate should you pass away. Responsibilities to any other revocable trust and any other nominations of your former partner in your will are no longer valid.
It’s important to note that the state laws responsible for this only apply to revocable appointments. If there is an irrevocable appointment, such as a life insurance trust, these laws won't remove your former spouse. Certain other assets, such as an IRA, 401(k), and other retirement accounts also don't automatically change under these laws, so you’ll want to review these and make changes according to the rules of your financial providers and the appropriate laws.
Protecting Your Heirs After Divorce
One of the biggest gifts that you can leave your heirs is an estate that’s less vulnerable to litigation when you pass away. If you don’t update your estate plan after your divorce, you’re potentially leaving your estate open to dispute by would-be heirs and others who you didn’t intend to take a portion of your assets after you’re gone. The legal battles that follow can take years to resolve and drain away a significant portion of the money that you intended to leave for the people you care about.
Luckily, there are measures you can take to protect gifts to your heirs from your ex-spouse or others who may try to make a claim.
You may want to start by reviewing your estate plan from top to bottom for names you wish to keep and those you wish to remove. Though the law does invalidate your ex-spouse’s claims in your will, it’s best to go ahead and revise your will after the divorce to make sure that he or she has been removed completely. You should also ensure that other beneficiaries you don't wish to be named are removed—and don’t forget to designate new beneficiaries or adjust the amounts that the remaining heirs receive accordingly.
One other common action to help protect assets intended for your child from a spouse is to create a trust in your will that names only your child as the beneficiary. You may also need to re-fund certain other trusts you’ve created, especially after the asset division is complete.
How to Get Help After a Divorce
Every estate plan is unique, and each family’s estate planning needs are different. An experienced estate planning attorney can help you determine how to best protect the future of your heirs after your divorce.
Attorney Michael Monteforte, Jr. has practiced law in Wilmington for over a decade, helping families like your plan for the future with years of experience and a personal touch. To find out what Monteforte Law, P.C. can do for you and your family, call us or use the brief contact form on this page and arrange a consultation at our office in Wilmington in person, by phone, or by video conference for your convenience.