Estate Planning After a Divorce

After a divorce, you start a fresh chapter of your life. One key step to take at that point is updating your estate plan to reflect your current circumstances. Here are a few tips for estate planning after a divorce.

Update Estate Planning Documents

If you previously created an estate plan with your ex, your trust or will is nullified upon divorce. Other documents may still be valid but should be replaced to reflect your current wishes. Once your divorce is finalized, you should be sure to update:

• Your revocable living trust and/or will: Most people choose to remove their ex as their successor trustee and/or executor and remove them as a beneficiary of their estate.
• Your Advance Health Care Directive: If you no longer want your ex making end-of-life decisions on your behalf or consulting with your physician regarding your medical care, you’ll need a new Advance Directive that appoints new agents.
• Your Durable Power of Attorney: If you no longer want your ex making financial decisions on your behalf and getting access to your financial life, you’ll need a new Durable Power of Attorney that appoints new agents.

Minor Children

If you have minor children, you can name a guardian for them in your will or trust. But be aware that if you were to die, your ex-spouse will likely serve as guardian of your minor children unless the court determined they were unfit. 

If your ex-spouse has an addiction or substance abuse problem or is abusive, name someone else as guardian of your minor child in your estate plan. Consider setting aside some money for your successor trustee can access if needed to go to court and prove them unfit to serve in this role. 

If your ex-spouse serves as guardian for your minor children in your will and you were to pass away, he or she would have control of any inheritance you leave those children until they turn 18. To avoid this, you can create a revocable living trust and name a trustee of your choosing to manage your minor children’s inheritance if you die.

Attorney Representation

Can you continue to use the same estate planning attorney you used before your divorce? Let’s say you previously created an estate plan together with your ex-spouse. If your ex will consent to sign a waiver, you can hire the same attorney to prepare your separate estate plan post-divorce. If your ex won’t sign a waiver, you’ll need to find new legal representation.

Whether you stay with the same attorney or find someone new, be sure to give a copy of your divorce agreement to your estate planner. This document will outline any legal obligations you have to your ex-spouse after you pass away. 

Be careful to meet any obligations outlined in this document, such as requirements to maintain a life insurance policy. Failure to do so may result in litigation after your death. Your divorce and/or estate planning attorney can review these legal obligations with you.

Update Beneficiary Designations 

Beneficiary designations also need to be updated post-divorce. Not all assets are distributed by your estate plan after your death. Some assets are simply distributed to the named account beneficiary, including:

• Life insurance policies
• Retirement accounts such as IRAs and 401(k)s
• Payable on death (POD) account
• Transfer-on-death brokerage accounts

After a divorce, check your beneficiary designations on any such accounts you may own. To update your beneficiaries, contact the institution and request a Beneficiary Designation Change Form.

Drafting a Prenuptial Agreement

If the time comes when you plan to remarry, be sure to meet with an attorney and draft a prenuptial agreement once you get engaged. Prenups are an important document to create prior to any marriage but are especially important if this is your second (or more) marriage. 

Navigating estate planning after a divorce may seem complicated, but an experienced estate planning attorney can guide you seamlessly through this process. If you have any questions about this topic, feel free to contact our office.

Law Offices of Daniel A. Hunt

The Law Offices of Daniel A. Hunt is a California law firm specializing in Estate Planning; Trust Administration & Litigation; Probate; and Conservatorships. We've helped over 10,000 clients find peace of mind. We serve clients throughout the greater Sacramento region and the state of California.