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Estate Planning and Divorce

pitchfork couple

If you are in the midst of a divorce proceeding, or have been divorced (which means about fifty percent of married couples according to the American Psychological Association) you’ve got some estate planning to do, or re-do. Here are a few of the most important things that you should know:

If you are in the process of divorcing, you are still legally married. The Family Code restricts your power to transfer assets until the two of you work out a property settlement and the divorce is final.

Make sure your estate documents do not give your almost ex-spouse power over you or your estate to the extent that you can.

  • Update your Advance Health Care Directive and Durable Power of Attorney so that your almost ex-spouse will not have legal authority to act for you if you are incapacitated.
  • Make a new Will so that your almost ex-spouse will not serve as your executor.
  • Revoke your existing living trust. This requires that you notify your almost ex-spouse and his or her attorney.
  • Create, but do not fund, a new revocable living trust.  Your new Will can pour-your assets into the new trust, just in case you die before the divorce is final. Your estate will still have to go through probate, but at least your current wishes will be carried out.

If you are already divorced you need to update your documents and make certain that your now actual ex-spouse is not named as a fiduciary or a beneficiary for any of your assets.

  • Update your Advance Health Care Directive and Durable Power of Attorney and name new Agents to act for you if you are incapacitated.
  • Make a new Will and name new executors and guardians, if necessary..
  • Create, and fund, a new revocable living trust.  Now that you are legally single you can create and fund a new living trust to transfer your assets without a probate proceeding upon your death.
  • Update your beneficiary designations for life insurance and retirement accounts. Make sure that your ex-spouse is not named as a beneficiary for any life insurance policies or retirement accounts that you own.