Do I Need to Update My Estate Plan After a Divorce?

signing paperwork next to toy house - estate planning concept art

Yes. Divorce changes your life, but more importantly, it changes your future. That’s why updating your estate plan is so important once you and your spouse split up. Your new estate plan should reflect your needs, priorities, and goals – all of which may have changed during your divorce.

Most couples create their estate plans around the time they get married, so your divorce can also be a natural time to update these important documents.

You may want to:

Revoke or Revise Your Will

After a divorce, the best way to update your will is to revoke the original will and execute a new one. Most states automatically take your ex-spouse off your will during a divorce, and some revoke the document altogether.

You may be able to revise your existing will, but your loved ones could run into trouble during probate. This is especially true if you still want to leave gifts to your ex-spouse. In your will, you can also designate a new guardian for your children, although this person may only gain custody if your ex is unable or unwilling to care for them.

Choose a New Healthcare Proxy

While you were married, you may have selected your spouse as your healthcare proxy, or the person who would make healthcare-related decisions on your behalf if you ever became incapacitated. During a divorce, your relationship with your spouse changes in many ways, and you may no longer trust them with this responsibility.

If you don’t want your ex to be the person who decides whether to keep you on life support after a car accident, you will need to choose a new healthcare proxy to handle this kind of situation.

Name New Beneficiaries and Powers of Attorney

Your spouse may also be listed as a beneficiary on your life insurance policies, retirement accounts, and other financial resources. Although you must wait until the divorce is final to change your beneficiaries, and spouses often split IRAs and 401Ks, you may want to designate new beneficiaries after the divorce.

If your spouse has medical power of attorney (see above) or financial power of attorney, you may also want to update your powers of attorney. Otherwise, your ex could oversee the most important aspects of your life if you become incapacitated.

Create or Update Your Trusts

According to Forbes:

The filing of a complaint for divorce places an automatic restraining order on your assets.”

You may be unable to create or update trusts during your divorce, but after the papers are signed, trusts can make it easier for you to pay alimony and child support and direct funds to your heirs. If you want someone else to control the money you leave behind for your children, you can create a revocable trust and name someone other than your ex as trustee or legally appoint a trustee to control your children’s finances. With trusts, you may have more control over what happens to your money, and it may be easier to keep a former spouse out.

Ask your attorney about the rules in your state.

Think About Your Children

If you have any concerns about your spouse’s ability as a parent, document them in your estate plan. This may be appropriate during a contentious divorce, a divorce involving domestic violence, or even a situation where you are aware of an ex’s substance abuse issues.

Courts try to keep children with their biological parents whenever possible, but if you have concerns that you want to be heard if you pass away, put your grievances in writing.

Important: Do Not Violate Any Court Orders or Legal Documents

Some states do not allow you to disinherit your spouse completely, so you will need to leave behind the assets they are legally entitled to. This is especially true if your ex fought for certain benefits in court.

You should also revisit your prenuptial agreement (prenup) to make sure you’re not shorting your spouse of any benefits you agreed to before getting married and divorced.

While you may want to start thinking about estate planning during your divorce, you should finalize your documents afterward to make sure you aren’t violating any court orders. It may even be a good idea to revisit your estate plan in a year or so after your divorce to see if you’re feeling differently about any of your decisions.

Ford & Friedman Focuses on Divorce and Estate Planning

When you’re ready to update your estate plan after a divorce, you may want to choose someone with familiarity in family law, as well. Sometimes, your divorce attorney can even help you with your estate plan.

At Ford & Friedman, we endeavor to make each client a client for life, so we are prepared to handle both your divorce and your estate plan.

Additionally, we have half a century of combined legal experience in both divorce and estate planning.

We pride ourselves on handling cases with sophisticated financial issues and helping our clients look after their interests – for life.

Whether you want to consider your financial future as part of your divorce, or you need an attorney to help you update your documents afterward, our team is here for you.

Call us at (702) 904-9898 or contact us online to get started today.