Divorcees: Update these 3 estate planning documents immediately

On Behalf of | Jan 8, 2018 | blog

Imagine you’ve been married for ten years, but you and your spouse have decided to call it quits. Through the stresses of asset division, child custody decisions and battles over spousal support, you might forget one very important thing: Your estate plan.

Spouses who are going through a divorce need to update the following three estate planning documents immediately:

1. Update your will

If you and your wife have a will, you’ll need to draft a new will just for yourself that supersedes the old one. It’s always best to draft an entirely new will rather than simply making revisions as a revision or amendment is more likely to get thrown out in court than an entire document.

In your updated will, you’ll probably want to remove your ex-spouse as a beneficiary and choose others — such as your children — to be your beneficiaries.

2. Update your trust

If you created a revocable trust, then you’re in luck, because you can make changes to your trust to reflect your new wishes for the trust contents so that your ex is no longer a beneficiary.

If you created an irrevocable trust with your ex as the beneficiary, then you may be out of luck. The terms of an irrevocable trust are set in stone the moment you create them — no matter what your marital status happens to be in the future. However, the wisest trust planners leave their assets to their “current spouse” and or whoever you were married to when you died. This avoids the unintended consequences of the trust assets going to an ex-spouse, but you need to have done this when you created the trust.

3. Update your powers of attorney and living will

You definitely want to update your powers of attorney documents and living will so that your ex-spouse is not the one who will make financial and medical decisions on your behalf in the event of your incapacitation. Like a trust document, if you appoint your “current spouse” rather than a specific person to be your guardian, then power of attorney privileges might be revoked as soon as you finalize your divorce. Be sure to check your powers of attorney to ensure that your ex will not be considered your attorney in fact in the event of your incapacitation.

There may be other parts of your estate plan that you need to adjust during your divorce, like the beneficiary designations on your financial, insurance accounts and other accounts. Be sure to fully understand your legal vulnerabilities in terms of estate planning whenever you initiate a divorce in Florida.