Either before you file for divorce or immediately thereafter, there are several estate planning documents that must be updated. While this may be easy to overlook, failing to update these important documents can end up with your assets going to your ex-spouse.
If possible, prior to filing for divorce, consider revoking and restating all of your estate planning documents. This includes updating your will and/or trust, power of attorney documents and living will. Remove your soon-to-be ex-spouse as beneficiary, executor and agent under the power of attorney documents. You do not want him or her to be making any decisions on your behalf should you become incapacitated during this period of separation awaiting final divorce. You also do not want him or her to inherit any of your assets should you pass away.
We recommend doing this prior to filing for divorce because once the divorce proceedings begin, a temporary restraining order may be issued preventing you from having the ability to revoke a trust or name new beneficiaries and certain accounts may be halted. The purpose behind the restraining order is to ensure that your assets and ownership interests remain the same until an official division of assets occurs during the equitable distribution portion of the divorce.
The risk is that you could pass away (we never know when this will happen) or become disabled or incapacitated. If this occurs during the pending divorce, your ex-spouse may end up with your entire estate. You retain the ability to amend your will and power of attorney documents at any time. This will not be affected by a temporary restraining order pursuant to divorce.
Once the divorce is finalized, you are then free to make changes as needed to any of your estate planning documents. At this point, you should review all of the documents to ensure they reflect your current wishes post-divorce. You will also need to review beneficiary designations on all life insurance policies, retirement accounts, POD/TOD accounts and annuities.
With so much going on during a divorce, it can be overwhelming to include another attorney and more legal paperwork. However, it is critical that your estate plan adequately reflect your new situation.
Below is a quick checklist to review immediately post-divorce:
- Will and/or Trust reflects current wishes
- Financial Power of Attorney is updated and ex-spouse is no longer named as an agent
- Healthcare Power of Attorney is updated and ex-spouse is no longer named as healthcare agent
- Guardianship of minor children is updated to reflect your current wishes
- Beneficiary designations are reviewed and updated on all life insurance policies, retirement accounts, POD/TOD accounts and annuities.
- Both your divorce attorney and estate planning attorney review all documents to ensure they are all worded consistently. Specifically, check to make sure any prenuptial, postnuptial or separation agreements do not contain language that conflicts with your estate planning documents.
Considering a divorce or recently divorced? Set up a consultation with the experienced estate planning attorneys at Stouffer Legal in the Greater Baltimore area to ensure your estate plan is up-to-date and reflects your current circumstances. You can schedule an appointment by calling us at (443) 470-3599, emailing us at office@stoufferlegal.com, or register for an upcoming free webinar using the link below:
https://attendee.gotowebinar.com/register/7640335196694379276
https://attendee.gotowebinar.com/register/8632242019509728525
https://attendee.gotowebinar.com/register/1056844398644700683
