The turmoil of divorce can be both physically overwhelming and emotionally exhausting. And the idea that you can’t just focus on the divorce (and your children) but that you also need to think about your estate planning sounds even worse.
However, and counter-intuitively, the time of separation or divorce is a very important moment to either: 1) update an existing estate plan or 2) to create a new one specifically designed by you and rooted in your new life and situation. Waiting until after the divorce means that your thinking and guidance may not be recognized in caring for your children and that your new circumstances and choices for guardians, executors, trustees, agents and health care decision makers may be totally wrong or left to a court.
So far from creating more stress, revising your planning and taking steps over something that you can and do control can be empowering and can protect you and your children/loved ones in many ways.
Yet, many people fail to update their wills/estate plans or simply wait too long, preferring to leave the task until “after the divorce is over.”
Why?
Well, we’ve heard everything from “My divorce lawyer never mentioned it.” and “I just can’t do one more thing.” to “I’ll just wait until the end to save money or time.”
And we understand.
BUT…
Your failure to act promptly after you separate or commence your divorce may have many undesirable and even dire negative consequences to you and to those you love and care about.
So, let’s think about this in a better way…and take a few questions, objections and issues one at a time.
1. Should Your “Soon To-Be Ex” Be Making Healthcare and Financial Decisions For You?
Most well-designed estate plans contain durable powers of attorney for both finances and for health care decision making. And, most married couples give each other power of attorney (in both areas) so that one can manage the other’s financial and healthcare affairs upon incapacity.
Some states also provide that after a divorce is commenced, that such documents may no longer be fully operational.
However, once you are separated, or after a divorce begins, the only way to ensure your estranged spouse is not making your financial or life and death decisions is by revising your estate planning documents to name someone else more appropriate under both documents.
BONUS NOTE: If you were both represented by the same lawyer during your marriage, your divorce may create a conflict of interest for that lawyer or law firm. In many cases, this potential conflict can be waived but the lawyer will no longer be able to share any information between the two of you without your specific permission. Make sure to discuss this with your counsel.
2. We are Often Asked “Since My Divorce Is Still “On going” (or My Estate Is Now Smaller),
Can I Just Wait Until After My Divorce To Worry About Changing My Estate Plan?”
The quick but correct answer is…No. some actions are required or desirable LONG before a divorce is finalized.
And spending a bit of time focusing on these areas in the beginning could alleviate a lot of heartache for your loved ones.
Understandably, you may feel exhausted by working with attorneys and sick of “legal documents.” However, this is one of the most important times to either update an existing estate plan or create a new one specifically tailored to your needs.
If you were to “wait until the end,” and you were incapacitated, your spouse might still be in charge of both your finances and health care decisions. He or she might still be entitled to some inheritance, might get your life insurance or other benefits, and might be your executor or a trustee for your children’s inheritance.
And, while that might actually be desirable and the best choice, it might also be a terrible error that can be avoided or mitigated by doing your planning at the outset of the divorce or separation.
3. YOU SHOULD DETERMINE AND GIVE GUIDANCE ON GUARDIANSHIP
AND TRUST PROVISIONS FOR YOUR MINOR CHILDREN
While many divorced parents are comfortable with their ex-spouse assuming both custody of the children and financial supervision of assets that you leave to them in the event of your death, in some cases the ex-spouse is not the best person to serve as custodian of your child or as a trustee of the assets that you would leave to them under your will or trust.
In fact, many divorces seem to be caused by or linked to the financial irresponsibility of one spouse or to a dangerous drug or alcohol addiction. In such as case, having that spouse named as executor of your estate, a trustee to guard over the funds left to children, or as their custodial parent, seems dangerous and irresponsible.
However, this situation almost always requires a modification of the estate plan as many spouses leave all of their assets to one another while married but following a separation or the start of a divorce, now want to leave them to children in a trust.
In addition, since more of your estate may be going directly to your children or younger heirs (rather than a spouse) you may think very differently about how, when, and for what purposes they receive funds as well as who should manage those funds and make decisions about their distribution (the trustee).
A revised estate plan at the outset of your separation or divorce can include the designation of guardians for your children upon your passing, which will convey your wishes to the court, family members and other interested persons.
In the unfortunate event of a legal battle concerning your children, your wishes are important to the court when making its ruling.
And, even if your spouse is the best person, you should designate one or more substitutes OF YOUR CHOOSING in the event neither you nor your spouse can act.
Furthermore, your estate planning documents can direct your assets to your children and name a trustee to oversee the assets until the right point in the future.
NOTE: Many states will not allow a spouse to be disinherited absent a pre or post nuptial agreement or a finalized divorce.
And, while this should be discussed with your estate planning counsel, that rule should not keep you from revising, executing or updating a plan before your divorce is final.
4. IF You’re Separated Or In The Process of Divorce Should You Update Your Annuity,
Life Insurance, IRA or 401(k) Beneficiary Designations Sooner Rather Than Later?
And What About Joint Accounts With Children?
Most married people will name one another as the primary beneficiary on certain assets (life insurance policies, real property, employer retirement plans, IRAs, investment accounts and bank accounts, etc.).
This beneficiary designation means that those assets are not controlled by a will or trust. Unless you change them, they may go directly to your spouse.
And, while this is a complex area of the law involving state and federal laws (including in some cases, ERISA) you should get advice from your tax advisers, your will/estate lawyer and your divorce lawyer about your real options at each stage.
If you have joint accounts or custodial accounts for your children, that could also be a problem where your spouse (before or after your divorce is finalized) might get control over those assets as the surviving parent of a minor child (or even an adult child who could be unduly influenced to give or to lend that spouse money from their inheritance if you were to die first).
So correcting those joint or custodial accounts earlier in a separation or divorce might make serious sense…especially if your spouse has an addiction problem, is bad with money, or may not be the best person to mange those assets for your heirs if you predecease your spouse.
This also raises the question of whether or not you should use the same lawyer who is handling your divorce for the estate planning revisions. So let’s think about that.
5. Who should create or modify my estate plan…the divorce lawyer
or a lawyer versed in the complexities of will, trust and estate law?
This is an interesting question and one that is worth discussing.
While it is true that there are “general practice” lawyers who both handle divorce and who draft wills, trusts, powers of attorney and living wills, it is also true that most estate planning lawyers do not handle divorce cases and vice versa.
Divorce lawyers are very good at protecting you from a spouse during the divorce. They are excellent at helping you to work out custody of your children in ways that benefit them, and that minimize the stresses of divorced parents.
But, they are not thinking about the best strategies for your will, trusts, estate, and coordinating your accounts and beneficiary designations. They are rarely called upon to create sophisticated versions of such documents. They don’t know what a trustee, agent or trust protector does (unless their own planning involves those tools and issues).
In fact, we have through the years represented lawyers who had many different types of practices. When they decided that it was time to do estate planning, they hired an attorney. Why? They are lawyers. Why didn’t they do it themselves? Well, because estate planning is very different than the type of law they practiced.
The bottom line. Unless both your divorce AND your estate planning are very very simple, it may make sense to have an estate planning lawyer coordinate with your divorce counsel to update your planning in a way that is consistent with divorce law AND the facts of your case.
Before we finish, here are a few questions that can be helpful in exploring the issues with both your divorce and/or estate planning lawyers…
6. Seven Important Questions To Ask Your Divorce and Estate Planning Attorneys
During The Separation/Divorce Process
- What happens to my property under my state’s divorce laws and my current estate plan if I die before my divorce is final and how is that effected by my current will?
- How do I better ensure that my estranged spouse cannot make any financial or healthcare decisions for me if I become incapacitated before the divorce is final?
- Who will obtain custody or guardianship of my children when I’m gone if my spouse survives me or fails to survive me?
- Who is the trustee nominated to control the assets for my children if I die before changing my estate plan and when can they get those assets (and/or for what purposes)?
- How do I coordinate the beneficiaries on my life insurance, retirement and bank accounts with my trusts, will, and estate planning documents?
- What other documents should I immediately review and update?
- Which lawyer is responsible for each aspect of my planning update and how will you coordinate your efforts?
If you were recently separated or divorced and would like to get your existing estate planning documents updated, please contact our office at 610-933-8069 to schedule a consultation and learn more about our process.
A NOTE ABOUT THE LAW: The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. Your individual circumstances and the laws applying to both your divorce and your estate plan may vary significantly. In the event you have inquiries, you should seek the advice of competent counsel before taking any action.
