In the aftermath of a divorce, updating your estate plan may not be at the forefront of your mind. You may still be distraught and emotionally and/or physically exhausted. However, many clients don’t realize what could result if they don’t update their current estate plan in the face of a divorce. In the event of a post-divorce unanticipated death, your assets could end up being distributed to your ex-spouse. Exactly what you don’t want to have happen.
The first and most important step one should take to avoid this outcome is to revoke one’s current will or trust and write a new one that excludes your ex-spouse. Because most of us, when we are happy and in love leave everything to our spouses upon our deaths, in the event of a divorce, you will most likely want the result to be different. Once your divorce has been finalized, or even if you are in the process of a divorce, you need to update your estate plan as soon as possible to make the desired changes in light of the resulting divorce.
You should also think about who you now want making your decisions for you in the event your physician deems you to be disabled or incapacitated for some reason. Your ex-spouse may no longer be the person who you want making your decisions for you, but is probably still listed as your decision maker for healthcare and/or financial decisions. Some people may still trust the ex-spouse to be making those decisions for them, however, that is the exception, not the rule. In my experience, most clients want the ex-spouse removed from being able to make any decision for them the second the ink is dry on the divorce order.
One final thing to consider when revising your will is the guardian designation for your children. Who do you now entrust with raising your children in the event of your untimely death? No matter what your will says, if your ex-spouse is mentally and physically capable, he or she will have the primary right to the children you had together; however, it should be noted that if you don’t believe your ex-spouse is fit to raise your children, your will may or may not be capable of preventing that from occurring. The best chance you have for preventing this outcome is to attach a document to your will explaining why you feel having your ex-spouse/parent raising your children would be detrimental to their upbringing and not in their best interest. Any information you can provide to a judge in support of your argument will be helpful to his or her final decision making process.
One last piece of post divorce-planning advice, I would personally go through all of your financial accounts and confirm who is listed as the beneficiary. For example, your life insurance, retirement accounts (401k & IRAs), bank accounts, and brokerage accounts. As with your will, if your ex-spouse is still listed as your beneficiary, he or she will end up inheriting that asset unless you make the change.