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How Will Separation or Divorce Affect Your Estate Plan?

revising estate plan after divorce

When you’re in the midst of a divorce or separation from your spouse, you have a lot to think about, and what will happen to your property should you pass away suddenly may not be in the front of your mind. However, if it is important to you that your property passes to your children or other family members rather than your estranged spouse, you need to act quickly to correct your estate planning documents and beneficiary designations. Contact a knowledgeable Kentucky family law and estate planning attorney as soon as possible to ensure your will reflects your intent.

How a last will & testament changes after a divorce is final

You may have written your will years ago after you got married or first had children, creating a document that accurately reflected your wishes at the time. However, after you divorce, you probably don’t intend for your former spouse to inherit most or all of your property when you die. The laws of Kentucky function to write a spouse out of your will if you failed to revise it after divorcing but prior to passing away. The probate court treats the will as though your former spouse has already died, so that what would have been their share of your estate could pass to the children you share. You should write a dated letter to your attorney if you wish to keep your ex as an asset beneficiary on your death. It is easy for family members to contest such wills.

A separation will not have the same effect as a divorce

The trouble often comes when one spouse dies unexpectedly while in the midst of a divorce, or during a long-term separation. Courts will not prevent an estranged spouse from inheriting under a will until a divorce is entirely final, even if spouses haven’t been living under the same roof for years.

Likewise, if you’ve implemented trusts in your estate plan, you will also need to take action if your spouse was listed as a beneficiary on one or more trusts. Unlike your last will and testament, the beneficiary of a trust will not change automatically when your divorce becomes final.

Here are a few considerations as you revise your post-divorce estate plan:

  • Give a Copy of the Divorce Agreement to Your Estate Planning Lawyer – Your estate planning lawyer needs to know the obligations you have to your ex-spouse and children in the form of alimony and child support payments.
  • Amend the Durable Medical Power of Attorney – Name someone to make medical decisions on your behalf in the event you become incapacitated. If you want you can continue with your ex-spouse, but you may want to consider that decision.
  • Amend the Financial Power of Attorney – You may want to update your current power of attorney (if it was your ex-spouse) to a close relative, friend, or trusted advisor.
  • Update Trust and Will – It is time to remove your ex-spouse from the trust or estate if they were listed as a beneficiary to your assets upon your death and you don’t want them to receive or control your assets anymore. Again, you should write a dated letter to your attorney if you wish to keep your ex as an asset beneficiary on your death, as it will likely be contested by family members.
  • Retirement Plan Beneficiary Designations – You should ensure that your IRA and 401K beneficiary designations are in terms with the divorce agreement.
  • Form a Trust for Minor Children – Your ex-spouse or the children’s guardian will gain control of the children’s finances if you don’t have a trust for them. This is until they turn 18 and can handle their own finances. Most people want to keep their ex away from their kid’s monies. You can create a revocable trust and name someone of your choice as the trustee for accessing and controlling the money in the event of your death.
  • Maintenance of Life Insurance – Consult with your divorce attorney and estate planning attorney and review the obligation for maintaining life insurance under the divorce agreement.
  • Prenuptial Agreement – When thinking of getting married again, you may want to draw up a prenuptial agreement that aligns with your existing estate plan.

There are many reasons why you should meet with an experienced estate planning attorney after you decide to divorce. You may wish to include your ex-spouse in your will, though not to the extent of a current spouse. You may also want to provide for a surviving spouse, but not to continue doing so should they remarry. A skilled Kentucky estate planning attorney can help you craft the plan that carries out your wishes and can stand up to challenges.

For assistance with a Kentucky divorce or creation of an estate plan, contact the knowledgeable and detail-oriented Louisville estate planning and family law attorneys at John H. Ruby & Associates, at 502-895-2626.