Estate Planning: What to Think About Before Meeting Your Lawyer
There are numerous estate planning issues that arise during a separation or divorce. If you're considering divorce, make sure you've adequately addressed these issues and avoid significant consequences.
The first issue is to immediately revoke any powers of attorney that grant your spouse powers over your health care or financial decisions. If you do not revoke these powers of attorney, your ex-spouse will remain your agent despite your divorce. Just imagine your ex-spouse making your health care decisions or continuing to have access to your financial accounts even after your divorce.
If you do not have a health care power of attorney or financial power of attorney, or after you revoke your existing power of attorney, you should create a new one. You may do this before, during, or after your divorce. If your divorce is pending, you probably do not want your soon to be ex-spouse having any type of decision making power over you or your assets. However, if you do not appoint someone else, your spouse will likely serve as the "default" agent if one is needed.
The next thing to consider is your Will. If you already have a Will, revise it. Chances are that your current Will provides for everything to go to your spouse. Once your divorce is final, any bequests to your spouse are nullified. Still, if you do not change your Will, such bequests will be granted if you die before your divorce is final. You cannot completely disinherit your spouse through a Will because State law provides for minimum amounts to a spouse, which is called "taking against the Will". Still you can limit what your spouse receives to the statutory amounts.
Also, there is a good chance that your spouse is named as your Personal Representative (or Executor). Even after your divorce is final, this designation will remain valid. Finally, any bequests made to in-laws will remain valid despite your divorce. Often there is a provision in Wills that provides that in the event your spouse does not survive you and there are no other beneficiaries under your Will, your assets are divided evenly between your heirs at law and your spouse's heirs at law. So, you may have a bequest to your in-laws and not even realize it.
You may also want to consider appointing a guardian for any minor children. In almost all cases, your spouse will continue to have parental rights and will receive full custody of your children upon your death. However, if there is a valid reason, such as abuse or drug addiction, why your spouse should not receive custody you should identify those reasons in your Will and name the person(s) you wish to have custody. Also, if your ex-spouse predeceases you, your Will should control who receives custody.
Also, you should establish a trust through your Will (called a testamentary trust) to control assets left to minor or disabled children. That way, you can decide who makes the decisions over those assets until your children are old enough to receive them outright. If you do not establish a trust and appoint a trustee, your ex-spouse will likely have control over any assets left to your children. And, although the assets are supposed to be used for the children's benefit, there is no practical way of controlling or checking that that is what really happens.
You should also consider a Revocable Trust. If you have one already, revise it to remove powers and gifts given to ex-spouse. Unlike a Will, any gifts given to an ex-spouse through a trust remain valid despite your divorce. Likewise, if your spouse is named as your successor trustee, that appointment remains valid despite your divorce.
There is also a benefit to having a Revocable Trust rather than a Will. In some states, you can completely disinherit a spouse through a revocable trust. The reasoning is that the statutes that grant your spouse a minimum amount of your assets only apply to your probate estate. However, any assets that are placed in trust during your lifetime are not subject to probate. Therefore, if you title all of your individual assets in your trust, you can keep your spouse from receiving anything of yours even if you die before your divorce is final. It can also serve as an ongoing trust after your death to hold assets for your children without your spouse having control or decision making ability.
Additionally, you should review and update any beneficiary designations on life insurance policies, retirement plans, etc. You may not be able to make some of these changes until your divorce is final. For most retirement accounts, your spouse has to sign an authorization for you to appoint someone else as your beneficiary. You may also be prohibited by the court from making changes while your divorce is pending. Just don't forget to make the changes once your divorce is final.
Finally, you should re-title any assets held jointly with your spouse. For many assets (such as house, car, joint investments, etc.), this may need to be done after your divorce is final. However, you can open your own bank and investment accounts at any time.
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