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A Guide to Estate Planning and Divorce

It is crucial to consider the implications a divorce can have on your estate plan and to update your plans accordingly. Read on to learn what you need to be aware of if you're getting divorced, and what estate planning steps you should take.

evident Editorial Team
published
October 28, 2021
Sandy beach with ocean waves.

Divorce can be exhausting, expensive, and even infuriating at times. There’s always a long list of things to get educated about, decisions to make, meetings to attend, and paperwork to file. It can be challenging to manage all of the financial, emotional, and personal elements at play throughout a divorce. 

It may feel like you already have a lot on your plate, but estate planning is a crucial thing to consider when going through a divorce. Whether it’s revisiting guardians for your children or beneficiaries under your estate plan, the reality is that getting divorced can have substantial consequences on your estate plan. 

This article will outline aspects of your estate plan you should consider during a divorce and help you create a list of to-dos to ensure your estate plan reflects your wishes.

Key Takeaways

The Impact of Divorce

As mentioned, divorce raises a multitude of issues that are difficult to navigate. Some of the types of issues you might have to navigate include:

  1. Financial Considerations: Finances acquired during marriage must be divided between the spouses. This can cause problems in many cases, but it can become even more complicated if one of the spouses isn’t employed or if there is a sizable pay gap between the two. Even if the parties both earn income, having your household income decrease substantially can be a huge stressor.
  2. Custody: In an ideal world, figuring out custody would be something that both parents wholeheartedly agree on and wouldn’t disrupt any children's current lifestyles. Sadly, though, this is far from the truth in most cases. It is necessary to consider a child’s schooling, social life, and general well-being. This can mean that one parent may end up getting more time with the kids. Dealing with this can be extremely difficult for both parents and children.
  3. Real Estate: Since real estate cannot be physically split in half, the parties will need to determine the value of any property, taking into consideration any loans or mortgage, and figure out how to divide it. Sometimes one of the parties will continue to reside in the property (such as a family home), which must be factored into the division of assets. Otherwise, a couple might decide to sell any real estate and divide the proceeds.  
  4. Rebuilding Life: When two people get married, they agree to intertwine their lives together. When the divorce goes through, this combination is effectively declared null. Building a new life after divorce can feel like taking a huge step into the unknown. 
  5. Emotions: Emotions can be at an all-time high during a divorce, so developing healthy coping strategies is crucial. This looks different for everyone, so whether it be taking up a hobby such as cooking, exercising, or playing an instrument--or even just spending more time with other loved ones--taking care of your mental health is crucial and should not be overlooked. 

In addition to these various considerations, constantly having to make decisions and dealing with paperwork can be a huge hassle. So, if finances allow, hiring a divorce attorney to guide you through this tumultuous process can take a lot of weight off of your shoulders.

Estate Planning During a Divorce

While going through a divorce, updating an estate plan is an important part of moving on with life. Some estate planning documents can be changed by yourself, while others need to be filed with the court for changes to take effect. There are also some estate planning actions that you cannot take while a divorce is pending, which we’ll address below.

While the divorce is pending, you can:

  1. Change your health care proxy:  A healthcare proxy is a document that allows someone to appoint another person, usually a spouse, to make healthcare decisions on behalf of the patient when they are incapable of making and executing any healthcare decisions. 
  2. Change your power of attorney: Creating a power of attorney (or POA) gives someone else legal authority to act on your behalf and manage your financial affairs. More often than not, people will name their spouse as their agent in a POA. If you feel that leaving your spouse as your agent in your POA is the best choice for you, then you should leave it as is. But if you want to change your POA, which will make sense for many people in this position, you can go ahead and do so now. 
  3. Update your will and change beneficiaries: After your divorce, you may want to change the beneficiary of your estate and any related assets. For this, you should speak with an estate planning lawyer in order to make any corrections and ensure that your will is still valid.

If your divorce has not been finalized yet, it is a good idea to consult an estate planning attorney before making any changes to (including revoking) a trust. You should also consult an estate planning lawyer before changing beneficiaries for things like IRA accounts or life insurance policies that avoid probate

Probate is how the court determines how to distribute your property after you pass. Some assets are distributed to heirs by the court (probate), while others bypass the court process and go directly to your beneficiaries (non-probate).

Make sure to do a full accounting and not hide any assets or property. In the case that your spouse, their attorney, or a judge discovers that this has happened, you may face severe sanctions (monetary fines) or a charge of perjury. And note that if you happen to fail to report assets or provide financial information to your spouse during a divorce, a court can order you to do so.

Updating Your Estate Plan After a Divorce

After the divorce has been finalized, there are several things that you should address as soon as possible if you have named your ex-spouse as a beneficiary, agent in a power of attorney form, or healthcare proxy. This list includes the following:

  1. Update your will and guardianship for any minor children (also covered above)
  2. Update your healthcare proxy (also covered above)
  3. Update your power of attorney (also covered above)
  4. Name new beneficiaries (also covered above)
  5. Consider creating, or updating, a trust

Updating or Revoking Your Will

If your executor--the person you name to carry out your wishes after you pass--is your ex-spouse, you should change this now so that someone you trust can distribute your estate according to your will. Hopefully you’re on great terms with your ex-spouse, but most people don’t want their ex to have that type of control once they get divorced.

As mentioned, guardianship is another critical thing to consider. Guardianship and custody are two things that often get mistaken for one another but are actually different. Guardianship means that the court grants someone other than the child's biological parents the right to care for a minor. More often than not, custody describes a parent caring for their own child. 

Assuming that after the divorce, the custody of any children remains joint, it could be important to revisit whoever is the guardian of the child in case something happens to both parents. In the event that both parents are unable to care for the children, the court would grant custody to this guardian. Choosing someone that both parties trust is of utmost importance in this scenario.

Depending on where you live, your state may ignore provisions involving your ex-spouse in your will and other documents, but you should not rely on these laws. It is better to make the changes you’d like to see for yourself. The laws can vary significantly by state and will not apply to all of your assets. 

Update Your Health Care Proxy

As mentioned, a healthcare proxy is a document that allows you to appoint another person to make healthcare decisions on your behalf in the event you are incapable of making healthcare decisions for yourself.

Before changing your proxy, you should confirm that the person you choose is willing and able to carry out your wishes. Make sure this person is aware of: 

  • Your personal attitudes towards health, illness, death, and dying; 
  • Your medical preferences regarding palliative care, life-sustaining care, and treatments you may need in the event that you are unconscious; and
  • Whether any religious beliefs you have are affected by types of care given in a hospital

To change your health care proxy, all you need to do is find the Health Care Proxy Form for your state, fill it out, and send it to your doctor. It is also helpful to give a copy to any close family and friends, the person you have designated as your healthcare proxy, and to keep a copy on hand just in case anything happens.

Update Your Power of Attorney: 

Creating a power of attorney gives someone else legal authority to act on your behalf and manage your affairs. That person--the agent--can represent you in healthcare decisions, private affairs, business, or some other legal matter. Anyone can act as the agent under a power of attorney as long as they are over 18, but most people end up choosing their spouse, children, or a close relative.

For financial powers of attorney, powers can involve the ability to buy and sell property, open and close financial accounts, change beneficiaries, and similar actions. You should make sure to review these documents after a divorce so that your ex-spouse is not the person left making these decisions for you.

The best way to update your POA is to fill out a formal revocation form to cancel any existing powers of attorney and advise your agent that their power has been revoked. You should destroy any old copies of your POA and shred them. 

To create a new POA, you should fill out the power of attorney form for your state, review it with an estate planning lawyer, and have it notarized to make it effective. In order to find the revocation and new POA forms, you can just search for the forms by state online.

Beneficiary Designations for Other Accounts

A beneficiary designation describes the person or persons you want to receive specific assets upon your death. Assets such as life insurance, retirement accounts, and annuities all pass by beneficiary designation. You should revisit this in the case that you have appointed your ex-spouse as the beneficiary. 

If you decide to leave any of these assets to any children under 18, you will have to appoint a conservator to manage the money until the minor turns 18. In cases like this, it’s preferable to select a trusted adult to be named as the beneficiary. This person can claim and manage the asset for your intended beneficiary for a period of time. 

You can review and update your beneficiaries by contacting the company or organization that provides your insurance or retirement plan.

Trusts

Trusts, like wills, can be used to direct the distribution of your assets after you die. They can give you significant flexibility in determining how your assets are distributed. 

Once assets are placed inside a trust, a third party--known as a trustee--manages them. The trustee determines how the assets are invested and to whom they are distributed when the person who created the trust--known as a trustor--dies. The trustee must manage the trust in accordance with the guidelines laid out when the trust was formed. 

After a divorce, you may want to revise the provisions of any trust if you named your ex-spouse as a trustee. If not, they would be able to control your finances and assets. Needless to say, most people do not want their ex-spouse keeping that level of control. 

Additionally, if you have a revocable living trust, you should revisit it. Otherwise, your ex-spouse could wind up with your assets if they are named as a beneficiary. Note that most states will find the provisions regarding your ex-spouse invalid in a revocable living trust, but if you have an irrevocable trust, the designations for an ex-spouse will not be revoked by state law.

Attorney Review

You should have your attorney review your divorce decree to establish what obligations you may have towards your ex-spouse that you might not have considered. If you are going through a divorce, evident can help you find a lawyer based on your needs to ensure that the process goes as smoothly as possible.

Planning For Your New Life

As mentioned before, this entire process can be one of the most challenging things you will have to go through due to all the various legalities accompanied by the difficulty of separating from someone you might have thought would be your life partner. 

After dealing with all the legal issues, it may be a good idea to calculate post-divorce living expenses. Now that your source of income has changed, it will be good to assess where you should allocate your income and if you need to make any changes to what you have been doing.

If your income allows you to, looking into a therapist or a counselor has also proven to be a helpful coping mechanism. While a lawyer can help you deal with the nitty-gritty logistical aspects, a therapist can give you practical advice and emotional support for dealing with the divorce. Suffering by yourself can lead you down a precarious path. If you don’t think a therapist is within your budget, try to find a friend who has gone through a divorce or a support group. Just being able to talk about your problems can make all the difference.

It is also essential to take care of yourself. It’s important to stay away from heavy alcohol and drug use and stick to a routine as much as possible. Make and eat healthy foods and take care of your physical health as well. This could involve joining a recreational sports team or even joining workout classes. Additionally, look into pursuing new hobbies, or old hobbies you may not have had the chance to prioritize while in your relationship.

In a time as tumultuous as this, it’s crucial to prioritize yourself and your needs in order to find your footing and move on with building your new life.

The Final Word On Estate Planning And Divorce

The reality is that getting divorced is a major life event that can have huge impacts on many parts of your life. Those impacts can range from literally how or where you spend your time to your financial future. 

It is important to consider the implications of divorce on your estate plan, and to update your plans accordingly. Whether it is changing the agent in your power of attorney forms or updating your will, getting divorced is precisely the type of life event that should prompt you to revisit your estate plan. 

And remember, this is not something you have to tackle on your own. An experienced estate planning attorney can help guide you through the process and make sure your plan reflects your current wishes.