estate-planning-and-divorce

3 minute read

Pre-Divorce Estate Planning

In this short guide, we discuss five changes you may need to make to your Estate Plan if you’re going through a divorce.

Patrick Hicks

Patrick Hicks, @PatrickHicks

Head of Legal, Trust & Will

Are you preparing for a divorce or considering your options? Did you know that divorce can affect your current Estate Plan as well as how your Estate will be handled in the future? Learn what you can do before a divorce to get your Will, any Trusts, and other important Estate Planning measures in order.

There are milestones in everyone’s life, there are also times of change. Getting a divorce – whether it’s after a long marriage or a short one, is one change that many people experience. Like all periods of transition, a divorce can be a stressful and uncertain time. Emotions can run high and when joint assets are involved, proceedings can get complicated.

Things don’t have to get unnecessarily complicated, though. While everyone goes into marriage as an optimist, sometimes things don’t work out. If a divorce is in the cards, there are things that can be done to make it easier. That includes taking care of pre-divorce Estate Planning.

The divorce rate for older Americans has gone up in recent years, according to the Pew Research Center. And while there’s a lot of talk about navigating life after a divorce, there are some less-talked-about steps to take in the pre-divorce stage that any adult should consider.

If you’re planning for your divorce, make sure you consider important Estate planning changes too, including:

Changing your Power of Attorney

In most cases, unless stated otherwise, your spouse will be the one who is first in line to make important health and financial decisions for you if you are unable to do so for yourself. If you’ve separated from your husband or wife, however, or you’re in the early stages of a divorce, you may no longer want your soon-to-be ex-spouse making important decisions on your behalf.

While some divorces are quick and (relatively) painless, others can drag on for a while. Before you start a divorce, you might want to grant your power of attorney to another person you trust with the position, such as an adult child or a close family member. Your power of attorney can be changed at any time, including before you start divorce proceedings, as long as you are competent and can consent to the change.

Amending your Will – or making one

As with a power of attorney, unless there’s a Will that states otherwise, a spouse will usually be the main beneficiary of an estate. Until, and only until, a divorce is granted, your soon-to-be-ex-spouse is still legally your husband or wife. Throughout your marriage you may have assumed that the two of you would want everything you have to go to each other. Maybe you put this in a Will years ago, or maybe you didn’t even see the need to make a Will. When preparing for a divorce, though, updating your Will – or creating one if you don’t yet have one – is a good idea. 

While in the pre-divorce stage, you may want to make changes to your Will regarding:

  •  Distribution of property (real estate, vehicles, valuables)

  •  Management of Assets (bank accounts, businesses, finances)

  •  Guardianship of minor children (if applicable)

and any other wishes you want to change or put into a binding legal document before your divorce. There may be state-specific laws you’ll need to consider, and an Estate Planning attorney can help you.

If you and your spouse already have a joint Will or individual Wills, if your state allows you to make changes before a divorce, that may be a good choice for you. Each divorce is unique, and some are more amicable than others. Making your wishes known before a divorce can eliminate uncertainty and reduce some of the tension in an already stressful situation.

Making changes to a Trust

If you came into the marriage with a Trust, or you and your spouse created one or more Trusts together, a divorce can mean amendments to the Trust or Trusts are called for. If you’re in the pre-divorce stage of Estate Planning, you may want to change the beneficiary of a Trust, change what’s included in a Trust, or create a new Trust (for minor children, adult children, grandchildren, or even your spouse.) You may also want to remove a spouse or their family members from a Trust you’ve created. If there are assets to be managed, you may want to appoint a new Trustee before the divorce. State-specific laws can apply here, and your Trust considerations, like your Estate Planning, will be unique and should be customized to your individual situation.

Looking at your Prenuptial or Postnuptial agreement

Prenups, and sometimes postnuptial agreements, can sometimes be a sore spot between couples, but they ultimately mean one thing: planning ahead. If one or both of you went into the marriage with considerable assets, you may have already taken care of some of these worries with a prenuptial or postnuptial agreement. In the agreement, division of assets, financial compensation, and ownership of property in the event of a divorce may be covered. These agreements may also be subject to change, however, in some circumstances.

Knowing what you can change before or after the divorce

There are changes to your Estate Plan that can be made proactively ahead of a divorce. However, there are also some things that can’t be changed until after a divorce. For example, if you’re dealing with pensions, life insurance plans, and some types of retirement accounts, and your spouse is currently the beneficiary of those assets, that can’t be changed until after your divorce is final. A customized approach to your Estate Planning before a divorce will help you sort through what needs to be done and make sure you’ve made all the changes possible.

Going through a divorce can create a lot of uncertainty. But it can also be a chance to re-arrange your affairs in a way you choose. At Trust & Will, we’re here to make Pre-Divorce Estate Planning simpler. Online Estate Planning options will help you with the transition. Contact us today with questions or to get started on your Pre-Divorce Estate Planning.

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