It may be easy to overlook your will and estate plan during and after a divorce, but it is vital that you consider them. A divorce agreement and a will are separate legal documents. Just because something was written on your divorce agreement, that doesn’t mean it will change in your will. Ignoring this can come with some troubling consequences you don’t intend, such as having your ex-spouse inherit all of your property. It is a good idea to consult with an estate planning attorney to finalize your will and estate plan after a divorce. You can be better prepared when you speak to your attorney by considering the following.
Completely Revoke Your Old Will
It is common for disagreements and disputes to arise over inheritance when more than one will is found. Generally, the newer will takes precedence, but any old wills create the possibility for dispute. This means it is important whenever you make a new will to ensure your old will and all copies of that document are completely destroyed.
A paper shredder or even a professional document destroying service are good options. In the digital age, you may also have to consider electronic copies of your documents, such as those stored on disc, in flash drives or on cloud servers. You will also want to destroy those kept with law offices or estate planners you may have worked with in the past. Simply provide them your new will or instruct them to destroy your old documents. Ensure there is absolutely no copy of your old will anywhere. This is the only way to truly ensure your old will is revoked.
The Importance of Timing
In most jurisdictions, the consequences of divorce when it comes to inheritance and estate plans only take effect once a divorce is finalized. Keep in mind that if you should pass while a divorce is still in process, your not-quite-ex-spouse will still be entitled to marriage inheritance. If you feel your passing may be imminent and you don’t want this to happen, you may need to make a new will and structure it a certain way before the divorce is finalized. It is a good idea never to delay updating or revising your will.
Interactions with State Law
What exactly happens with wills and divorce agreements is determined by state law. This means it can vary from place to place, and it may change over time. In some states, a divorce automatically cancels out some parts of inheritance, even if stated in a will, and in other states, it doesn’t. It may even cancel out inheritance in ways you don’t expect. For example, in some states, a divorce will cancel out an inheritance for anyone related to the former spouse, including people you may wish to keep as part of your estate plan.
Understanding how state laws affect your estate plan is best determined by an attorney knowledgeable about those state laws. This is where consultation is especially important even if you are planning to do most of your will yourself.
Naming New Beneficiaries
The main purpose of a will is to name beneficiaries to inherit your assets. When you remake your will, your first goal should be to consider your new list of beneficiaries. You may even wish to keep your spouse as beneficiary over some assets. Since that person will no longer be entitled through marriage, they will have to be specifically named as a beneficiary when they may not have needed to be before.
It is also important to name alternate beneficiaries. In some circumstances, your named beneficiaries cannot inherit. If you have not named anyone else, then those assets may become mired in the probate process until they are ultimately given to someone. This often results in a loss of value for the asset or even requires the asset be liquidated, and the cash be disbursed—almost always at a loss and usually via auction. It is much better for your heirs and your assets to have an alternate beneficiary clearly named.
Name a New Executor
Generally, your spouse would also be the executor of your estate, or the person responsible for overseeing your estate plan and the disbursement of assets. This person has an incredible amount of power to make changes to your estate, so it is important your executor be someone you trust. This is unlikely to be an ex-spouse. Sometimes your ex-spouse is automatically revoked, and sometimes they are not. This again depends on state law and may change. It is safer to name a new executor and also an alternate in case the first is not available or is unwilling to serve as executor.
Children and Guardianship
An important part of any will, especially for parents of younger children, is the naming of a guardian in case both parents die or are otherwise unable to serve as parents. Divorce can complicate the guardianship decision. A will can serve to help clarify your wishes on guardianship and custody after divorce.
If possible, you should still try to reach out to your former spouse and see if both of you can keep the same people listed as guardians on your wills. This makes the appointment of a guardian easier and more predictable. If the wills between parents differ on the choice of guardian, a judge must make the final decision. Keep in mind that divorce generally has little impact on parental rights, so whatever your ex puts in his or her will for guardianship will have legal standing.
A will is not usually the place to argue custody or parental rights, but these may still be very important issues for your case. If you held sole custody, you likely have strong feelings about your ex-spouse retaining custody after you pass. Unfortunately, unless your ex-spouse’s parental rights have already been revoked, custody will likely pass to them as the only surviving biological parent. You may, however, use your will and supporting documents to influence the court’s decision.
If you feel strongly that your ex is not fit to be a parent, you may attach a letter of explanation to your will. This does not have direct legal standing, but the judge may still weigh all the evidence when deciding on your children’s best interests. If you held sole custody, then your wishes as the primary caregiver will have weight, and it is possible, albeit rare, for the judge to assign primary custody to a guardian instead of the other parent. If this situation pertains to you, then it is an important conversation to have with your attorney.
Powers of Attorney
While this is somewhat separate from a will, it is still an important part of your overall estate plan. Powers of attorney give another person the ability to make legal decisions on your behalf should you become incapacitated. You may have expressly named your spouse as power of attorney, and this right may not be revoked by divorce. It is important to directly revoke these powers and name new powers of attorney after divorce if you don’t want your ex making important health and financial decisions for you.
Remember Trusts and Other Parts of the Estate Plan
While your will is of primary importance after a divorce, it is not the only component of your estate plan. Don’t forget about your trusts, insurance, and other types of accounts that are strongly tied to inheritance. These accounts may be legally separate from both your divorce agreement and your will. They must be updated directly. Divorce can change many things about your future and your desires for your assets and heirs. You may also plan to get remarried and have a new group of relatives to consider in your estate plan. If you created a trust that left substantial assets to a stepchild or even a biological child you no longer have custody of, then you may want to make changes.
Divorce can be a complicated and intimidating process, and updating your will and estate plan is no less complicated. It is important to consult with an attorney and come prepared with an idea of what your wishes are. Your attorney may then help you revise your estate plan in such a way that your new wishes and life situation are best represented on paper.