Divorce and Estate Plans

Divorce is an emotional and financial roller coaster and estate planning may not be one of your priorities, but if steps are not taken to update your estate plan, your assets could be distributed to those you would not expect, even your ex. Here are some steps you can take to insure that your estate plan reflects your current status and wishes.

Create New Will - Sometimes it is wise to revoke your old will and make a new one. If you don't have a will, now is the time to do so. Also, if you have a living trust while you were married update it.

  • Leave your property to those you choose.
  • Name an executor to administer your estate when the time comes.
  • Select a guardian to care for your minor children.

Leave Property - If you made a will while you were married, you probably left everything to your spouse. With a new will you will be naming new beneficiaries and alternate beneficiaries.

Name an Executor/Personal Representative - If you don't want your ex-spouse to inherit your property, you probably don't want him or her in charge of your estate, either.

Select a Guardian for Minor Children - A key reason that many parents of young children make wills is to name a guardian who would raise children under the age of 18. A court will appoint a guardian to care for a child only if both parents are deceased or unfit. In your will, however, you can name whomever you choose to serve as guardian, in case both you and the other parent aren't available.

Missouri has laws in place that automatically revoke any provisions in your will that favor an ex-spouse from whom you are divorced. Although, if you have minor children, it's still a good idea to have your guardian nominations reviewed. In addition, while the state may automatically remove your ex from authority roles, you will need to choose someone as a replacement.

Update Beneficiary and Transfer on Death Designations - Most insurance policies, bank accounts, etc. include the designation of a beneficiary. This is the person who will receive money from a policy(s) or account(s) upon your death. Update your beneficiary designations for:

  • Life insurance policies
  • Retirement accounts such as IRAs and 401(k)s
  • Pay-on-death bank accounts
  • Transfer-on-death brokerage accounts

"To name a new person to inherit these assets, request new documents from your bank, brokerage company, or employer, and submit them as soon as possible. Don't assume that state law (or even the terms of a divorce decree) will revoke any earlier designations you made naming your former spouse. Certain "qualified plans," such as 401(k)s, pensions, and employer-provided life insurance policies, are governed by a federal law called ERISA (the Employee Retirement Income Security Act). And ERISA says that a plan administrator must turn funds over to the beneficiary named in the plan documents-no matter what state law says. So if your former spouse is still the named beneficiary, he or she will inherit unless you change the paperwork."

Make New Powers of Attorney - Powers of attorney are a big part of an estate plan. You should have two powers of attorney: one for financial matters and one for medical directives. If you already have powers of attorney that give your former spouse authority to make decisions on your behalf, revoke them and make new documents.

Financial Matters - These types of legal documents determine who will be in charge of your finances should you become unable to take care of them yourself. The power of attorney gives the named party major financial power so it is wise to update as soon as possible.

Healthcare Directives - Your healthcare directives names the party who has the authority to make medical decisions on your behalf if you are not able to do so yourself. If you have a living will, your ex may be named on it, so be sure to update.

In conclusion, if you are facing a divorce, be sure to make estate planning a priority. This is an area that sometimes gets neglected, but should be addressed with a qualified attorney.  At Stange Law Firm, PC, we can refer you to an attorney who can help.

Source: Revising your Estate Plan after Divorce, NOLO, Mary Randolph, J.D.