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Estate Planning: What You Need to Know and Do Before Divorce

    

You might think facing one legal consideration at a time is a good plan of action, and mixing estate planning with a self-directed divorce can seem like an overwhelming proposition. But by taking action regarding your estate before and during your divorce, you can ensure better financial protection for yourself and your heirs.

Many estate planning actions you should take before and during divorce are actually just paperwork processes, so having a plan of action and checking each item off the list one at a time lets you get it all over with ease.

Steps to Take if You Already Have Estate Plans

If you and/or your spouse took time to make estate plans at some point during the marriage, then it's likely you'll want to rethink some of those decisions in light of the change in marital status. This section provides a list of documents and accounts you might want to review before you file for or finalize a divorce and what actions you can take.

Payable-on-Death Accounts

Some of the first things to address if divorce is likely are your payable-on-death accounts. Many checking, savings, investment and even retirement accounts let you bypass formal probate processes by assigning a beneficiary (or beneficiaries) directly to the account. You typically do this by completing a form with the financial institution that holds the account, often when you open the account. In such cases, the assets in the account automatically transfer to the named beneficiary — without the need for probate — when a death certificate and any account-specific forms are presented.

Many people name their spouse as the primary beneficiary on such accounts, so if you're filing for divorce and don't want your ex named as the beneficiary, reach out to each financial institution. As long as you are the sole account holder, it's usually fairly easy to change beneficiaries, and your bank or investment company can provide you with the forms to do so.

Life Insurance Policies

Life insurance policies are also payable on death, following the requirements of each policy. If you own a life insurance policy on yourself with your spouse as the beneficiary, you can usually change the designation at any time. Talk to your insurance agent or check out your insurance company's online forms library for a change-of-beneficiary document.

Wills

Many couples handle estate planning matters together, and many even have a commingled will. Whether you have no will at all, made one with your spouse or made your spouse a primary beneficiary of your assets, you might want to draft a new will upon divorce. While estate law in most states makes it hard to write a spouse out of your will, that isn't the case for an ex, and any valid will with a newer date supersedes previous documents.

Read more about inheritance here

Trusts

Trusts aren't always as easy to alter or undo as other estate plans, and some are actually irrevocable. Whether or not you can take assets out of a trust depends on how you set it up, and the same is true for changing rules or beneficiaries of the trust. While many of your pre-divorce estate planning tasks can be handled with DIY forms and some help from a financial institution or two, if you're dealing with trusts, you might want to talk to a professional estate planning attorney.

Power of Attorney

Finally, if you've ever signed a form providing your spouse with decision-making power over your finances, health care or other matters, ensure you file documents revoking that power if needed. Some common power of attorney (POA) forms include health care proxies, which give someone else the ability to talk to medical providers and make decisions on your behalf if you're incapacitated. Other POA documents let someone access your financial records or handle money matters for you. In some truly amicable divorce situations, individuals might be comfortable leaving their ex in control of such things; if that's not you — and it's a completely understandable stance to take — consider choosing someone else to designate in these roles for emergency situations.

Agreeing on Estate Matters Related to Children

If you're working through an online divorce together, you and your soon-to-be ex might also want to consider coming to an agreement on a few other legal matters. In some cases, you can even make follow-through on these agreements mandatory by including them in the divorce. This is especially critical if you have children together; ask yourself: How do you want the kids to be cared for if something happens to one of you? And what if something should happen to both of you?

Some things to consider include:

  • Legal or written agreements to ensure family members on both sides, such as grandparents, aunts and uncles, are able to maintain relationships with the kids
  • Who you want to be named guardian of the children if something happens to both parents
  • Whether you can work together to set up trusts to benefit the kids in the future

If you're worried about support for your children after you're gone and don't trust your ex to manage any funds you leave behind, you can set up a trust and choose an administrator. For example, you might create a trust meant to provide for your children or help with their education and make your sibling the administrator should anything happen to you.

Estate Planning After Divorce

Once the divorce is finalized and all the property is appropriately split, your estate planning decisions become your own affair. If you've done the work ahead of time to change beneficiaries and create a new will, then you probably don't need to worry overly about estate plans related to your previous marriage. Instead, you can move forward with your life, building stability for your own future.

While It's Over Easy doesn't provide estate planning tools, you can find a local expert in your area with our professional directory. 

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