If you are going through a divorce, updating your estate plan is an important part of moving on with your life. Understand that, by law, you are legally married until the judge signs the final divorce decree. If you pass away before the divorce is final, your estranged spouse may be entitled to your estate if you haven’t made an estate plan. If you do have an estate plan that mentions your soon-to-be ex-spouse (STBX), your final wishes have likely changed from the time it was drawn up.
Here we’ll discuss how to update your estate plan accordingly as you move through a divorce. Some estate planning documents you can change immediately by yourself or with the help of an attorney. For others, you need to serve notice to your STBX and file with the court in order for changes to take effect. There are some estate planning actions you cannot take while a divorce is pending, and we’ll show you what those are.
Estate Planning Actions You Can Take While A Divorce Is Pending
If you are going through a divorce, you can go ahead and change your Advanced Health Care Directive right away. You need not wait until the divorce is final. That is unless you want your STBX deciding critical care decisions on your behalf.
You can prepare or change your durable power of attorney while the divorce is pending. This way, should you become incapacitated before the divorce is final, your STBX cannot mismanage your financial affairs for their benefit. Generally, since an agent under a power of attorney is going to be making financial decisions on your behalf, it is a good idea to choose someone that you trust and who has some good experience handling financial matters. This person can be a trustworthy child, sibling, parent, CPA or financial advisor.
You can go ahead and either prepare a new Last Will and Testament, change the beneficiaries on your current last will and testament, or revoke it altogether, while the divorce is pending. If you don’t have a will, now is a good time to create one—because if you pass away without a will before the divorce is final, your STBX may inherit all your assets. Furthermore, if you forget to remove your ex-spouse from your will after the divorce is final, it will complicate matters for your heirs with respect to how your property is distributed according to your final wishes and likely wind up in expensive litigation.
Be Careful When Changing Beneficiaries for Retirement, Insurance and Trusts
Be careful when revoking or altering a trust before the divorce is final—always consult an estate planning attorney before doing so because it’s complicated and depends on the type of trust you have, and the language in the trust document.
One thing you can do unilaterally is execute and file a disclaimer. Under certain circumstances, a disclaimer can be a very effective tax planning mechanism to keep property from being considered part of your estate and, as such, potentially subject to estate tax upon your death.
Some trusts, namely irrevocable living trusts, which are usually designed to benefit the minor children of a marriage, cannot be changed. Of course, it’s always a good idea to make sure minor children are taken care of in case you die. However, if your STBX is the legal guardian for your children, understand that unless an alternate successor trustee is named, your STBX will control their monies until they turn 18. If that doesn’t sit well with you, like if your STBX has a substance abuse problem, think about changing your guardianship designation in your estate plan.
If you are the grantor of a revocable trust, you are generally allowed to revoke or amend your trust, so long as you comply with the express terms of the trust, as you see fit until your death or incapacity. If you alone are the grantor of the trust, this means you can remove your STBX from the revocable trust—but conditions do apply. Here is where it gets tricky.
If you or your STBX created a revocable trust together, and then a divorce is filed by either party, you may not change or remove the assets from the trust without giving notice to the other spouse.
Similar rules apply to life insurance and retirement benefits. If your STBX is a beneficiary of a non-probate transfer, which includes IRAs, profit-sharing pension plans, life insurance, and retirement benefits, consult an attorney to address your unique situation before making changes to the beneficiaries.
If any changes are to be made to the beneficiaries of a trust or insurance policy, you must follow the language of the revocation terms as stated in the trust document. It is also required that you file and serve notice to your STBX about their removal for it to take effect.
Estate Planning Actions You Probably Should Avoid
There are certain estate planning actions that must not be taken during a divorce, unless you have the consent of your STBX or obtain a court order. Generally, any action that attempts to shift money or property away from a spouse ahead of a final divorce judgment is prohibited.
Transferring or hiding assets or property—whether it communal or separate—is punishable under civil code. Beyond civil penalties, spouses that attempt to hide assets are not looked kindly upon by family court judges, and as such, incur real and serious financial repercussions in divorce rulings.
Funding a new trust, revocable or irrevocable, is not allowed during a divorce. Also, you cannot create a non-probate transfer or modify a non-probate transfer (IRA, life insurance, benefit plans, revocable trusts) in a manner that directs assets away from your spouse.
When child support or spousal support is at issue, you cannot cash-out or borrow against insurance policies (life, health, disability, automobile) or cancel those policies or transfer their funds into a different account.
Parts of how you should change your estate plan during a divorce are straightforward. Others you absolutely need to ask an estate planning attorney about the best way to proceed. It is important to work with legal representation that understands the intersection of family law and estate planning when sorting out your affairs in the wake of a divorce.
About the Author
Sharon M. Anderson is a trial attorney that manages the Estates & Probate Department at Holstrom, Block & Parke. She provides legal expertise in issues related to probate, estate planning, conservatorship, guardianship and trust administration. Read more from Sharon: Learning from Tom Petty's Estate Planning Mistakes
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