Going through a divorce can be painful, overwhelming, and stressful. It’s the end of one chapter and the start of another in your life. Although it might be the right decision, you’re forced to confront many issues. For example, you and your ex must agree to the terms of the divorce, such as child support, alimony, and property division, or the court will decide them for you.
However, there’s another often-overlooked aspect of divorce – estate planning. Below are the elements of estate planning you should consider to prevent your ex-spouse from acquiring your assets or retaining control over your affairs if something happens to you.
Update Your Beneficiaries
Some assets allow you to name a beneficiary, such as retirement plans, life insurance policies, and bank accounts. The beneficiary will receive the funds contained in the account when you pass away, regardless of the terms of your will or trust. A divorce does not negate a beneficiary designation either, so be sure to update each one after the proceedings if you wish to prevent your ex-spouse from inheriting from you.
Consider a Trust to Manage Your Children’s Assets
If you and your ex share young kids, the court could give your ex the responsibility of managing the funds you decide to leave to your children. You should evaluate whether your ex may misuse your assets for their own benefit or make unwise choices for your children.
Ensuring your minor son or daughter receives their inheritance may require you to establish a trust and appoint a different trustee. The trustee you choose should understand their role in your child’s life and how to manage your assets. Often these trusts are created within the will itself, and are called testamentary trusts.
Draft or Revise Your Will
Ideally, you should draft or update your will during your divorce. Otherwise, your soon-to-be ex-spouse might still inherit most of your assets at the time of your death.
Sometimes wills drafted while divorce proceedings are ongoing leave spouses the minimum required by law. This is because while you are married, your spouse is entitled to inherit one third of your assets – the “elective share” – unless they’ve agreed to waive that right in a pre-nup or post-nup. After divorce, you can choose to name your children, parents, or anyone else as the beneficiaries.
If you plan to remarry, you may want your new spouse to be able to live in your home or make use of other assets during their lifetime, but want your children to receive them after that. To avoid your assets going to another spouse if they remarry, or to children from your spouse’s other relationships, talk to your estate planning attorney about creating a trust.
Your will should also name an executor and a successor if your first choice is unable to serve. The executor is the person who files the will with the court, carries out your wishes, and pays your debts and any income or estate taxes due. You may wish to name someone other than your ex, and you should choose people who are fiscally responsible and can handle legal matters well.
Other Positions of Authority
You should also consider removing your spouse from other positions of authority in your estate plan. Chances are, you do not want your ex to serve as your agent if you have a Power of Attorney and make financial decisions for you anymore. You also may not want them to make life or death decisions for you in a medical emergency. An estate planning attorney can help you appoint someone else instead.
There’s a lot to think about during and after a divorce. Estate planning is one task that should be prioritized for your and your family’s protection. If you need help completing any of the steps in this article, please contact Bracha Etengoff at (347) 640-0993. We offer estate planning consultations by video, as well as in our Manhattan and Long Island offices.