After divorce, many people forget that they need to reconsider their estate plan. Seeing an experienced estate planning attorney after a divorce is important – and it’s smart to work with a law firm that deals with divorce and family law as well as trusts, estates and probate. Here are some of the issues to look at to make sure your estate plan reflects your wishes after getting divorced.
Update Your Advance Health Care Directive
Chances are your advance health care directive still has your ex-spouse listed as your attorney-in-fact under a healthcare power of attorney to make health care decisions for you in the event you become incapacitated. Following a divorce, your ex-spouse may be the last person you want to be making those kinds of decisions for you! As a result, you should consider changing your healthcare power of attorney as part of an over-all estate plan review/change by a qualified estate planning attorney.
Name a New Person as Your General Power of Attorney
Just as with a healthcare power of attorney, most people would not want their ex-spouse to have the power to mess with their finances, etc. under an old general/financial power of attorney that they executed before divorce was even a thought in their minds. A good estate planning attorney can also help you resolve this common post-divorce problem.
Amend Your Will and Trust
When thinking about changing their estate plan after a divorce, most people want to make sure that their ex is not going to inherit from them, but fewer people would think to also remove and replace their ex as their nominee to serve as personal representative (executor) of their will, and fewer still would think to remove and replace their ex as a co-trustee or successor trustee of their trust(s). Clearly, these are areas where an experienced estate planning attorney would be useful.
Guardianship of Minor Children
Just because you were awarded custody in your divorce doesn’t mean that you get to decide who will have your minor children in the event of your death. There is a rebuttable legal presumption that the surviving parent will get custody. Even so, you should always name someone other than your ex to serve as guardian of your minor children in the event of your death because your ex might die before you. Naming a trusted family member or friend to serve as guardian is especially important if you believe that your ex would be an unfit parent for your minor children if you die first. However, you will probably want to provide a fund for your nominated guardian to use to prove, via litigation, that your former spouse is an unfit parent and that your children need a guardian instead. If you are divorced and have minor children, this is an important issue to discuss with your estate planning attorney.
Set Up an Irrevocable Trust for Your Children
Most people want to leave the majority of their estate to their children in the event of their deaths, and, as noted above, most people don’t want to leave anything to their ex. However, in the event of the death of one of the parents of minor children, the surviving parent will generally get to control any inheritance left to the minor children. The best way to make sure that your ex doesn’t get control of (and possibly spend on him/herself or others) whatever you leave for your minor children, is to leave it to them “in trust” and under the control of a trustee — a person who you trust and who you have appointed to control the assets for the benefit of your minor children. Talk to your estate planning attorney about the best way to set this up.
Revise Your Retirement Plan, Life Insurance and POD/TOD Beneficiaries
As noted above, most people don’t want to leave anything to their exes when they die. However, most people designate their spouses as their death beneficiaries on their retirement plans, life insurance policies, and bank/investment accounts as a matter of contract with the institution that is holding the plan, policy or account. As a result, after divorcing you will want to make sure you update your designated death beneficiaries on all your retirement plans, life insurance policies, and bank/investment accounts. Utah does have a statute that is supposed to nullify the death beneficiary status of your ex, but if the institution holding the plan, policy or account isn’t aware of the divorce, it may just go ahead and pay the assets out to your ex, leaving your heirs to have to bring a lawsuit to try to recover those assets.
Most people don’t stay divorced. They find someone else and get married again. This frequently creates a “yours, mine and ours” situation that makes good estate planning even more complicated.
Once your Utah divorce is finalized, reach out to J.D. Milliner & Associates. We have a team of highly experienced lawyers with backgrounds in business law and divorce and family law, in addition to expertise in trust, estate and probate law. We believe that we are very well prepared as a law firm to address these frequently overlapping issues and help you revise your estate plan after divorce.
To schedule a consultation with a skilled Utah estate planning attorney, contact J.D. Milliner & Associates in Salt Lake City today. (801) 505-5600.
NOTE: This article is for informational purposes only and should not be construed as providing legal advice. Use of this site does not create an attorney-client relationship. Contact an attorney to obtain legal advice.