As much as we all want a “happily ever after” life, the reality is that many marriages end in divorce. After filing the petition to divorce, the process of separating two intertwined lives begins. There are often child custody and support issues to decide, division of assets and property, and debts to negotiate through.
One major legal issue that many divorced couples fail to address, however, is that changes may be needed on estate planning documents. Wills, trusts, power of attorneys, advanced directives, and several other documents may need to be changed if you are no longer married.
When a person passes away without having created a will or living trust, this is called “intestate.” Each state determines its own intestate laws. In some states, when a couple divorces, any inheritance the ex-spouse would have inherited per instructions in the will are now void. It is very similar to intestate because your will is not considered valid under the law. Also voided are any designations of the ex-spouse for power of attorney, executor, guardian, or conservator that were named in the will. If you chose to keep your ex-spouse for any of those things, or to have your ex-spouse be one of your heirs, then you would have to specifically cite that in your will.
In other states, a divorce does not automatically void out any designations you may have assigned to your ex-spouse in your will. In order to void the will, your lawyer, like an estate planning lawyer Phoenix AZ relies on, would have to execute a new will.
Regardless of the laws in your state when it comes to wills, there are other items that a divorce does not void out automatically. Any accounts where you have your ex-spouse as a designated beneficiary will remain that way until you physically change them. This means any assets you have in those accounts would go to your ex-spouse if you died, even if you had remarried. The same applies to life insurance policies. If your ex-spouse is listed a beneficiary when you die, he or she will receive all those funds no matter how many years you have been divorced.
Another important issue you will want to address is your advance directive or power of attorney for healthcare. Separate from a general power of attorney mentioned above, this is someone who will have the authority to make medical decisions for you should you become incapacitated and no longer able to communicate what your wishes are. Like wills, whether or not the divorce will void your spouse out will depend on the state you live in. However, even if your will is voided, you’ll still need to draft a new document in order to pick someone to be your medical power of attorney.
There may be other legal matter regarding your estate that will need to be changed after your divorce that you may not even realize. This is why it is important to sit down with your estate planning attorney after a divorce or any other life changing event. For more information about this, or for assistance regarding your estate planning needs after a divorce, contact a lawyer.
Thanks to our friends and contributors from Kamper Estrada, LLC for their insight into estate planning and divorce.