Divorce And Your Estate Plan

You did your due diligence and created an Estate Plan to protect and care for your loved ones after you die. It gave you and your family a feeling of satisfaction and security knowing that you and your assets would be taken care of properly after you’re gone, a step that should be taken by everyone.

But, as often happens in life, a bump in the road occurs: you and your spouse decide to divorce.

Divorce can be a confusing and painful process. It’s important that you review your Estate Plan at this critical time. You and your spouse are still legally married until the divorce decree is signed and finalized by the court. If you die or become incapacitated before that happens, your spouse may still have legal control over you and your assets.

The best way to prevent that from happening is to contact an attorney that can review your Estate Plan with you and suggest updating it if necessary, and limiting the spouse’s rights as beneficiary of your assets.

In many cases involving Estate Plans, the spouse is not only given Power of Attorney but is also designated Health Care Representative, which allows them to make decisions on your behalf if you are incapacitated.  These powers could be easily abused during a divorce, which is why the Estate Plan should be reviewed and updated.

An even more important topic to cover is your children. If you have minor children, and no Estate Plan, the law will generally give the surviving spouse custody of your children. However, you may have created an Estate Plan and named your spouse as trustee in the event of your death. If you feel your estranged spouse is not fit to carry out the duties associated with being a trustee for your children, you may want to update the Estate Plan and name a new trustee.  In addition, you may feel that your estranged spouse is the best custodian of your children.  Part of your estate plan should include the selection of a guardian who would be responsible for raising your children after you are gone.  This is especially important in the event that your estranged or former spouse predeceases you.  If you fail to have a guardian named as part of your Estate Plan, the Commonwealth of Kentucky may take custody of your children or an individual who you do not approve of may become guardian of your children.  This is an outcome that can be avoided by making sure that your Estate Plan is current.  

To conclude, one of the most important steps you can take for your family is to create an Estate Plan. But because life changes, you should be proactive by periodically reviewing and updating the plan when those changes occur, especially in the event of a divorce, marriage, remarriage, or death.