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Divorce is a time of significant change, and amidst the emotional turmoil, there are many practical matters to consider. One task that people often overlook during this difficult time is updating their will. As with all scenarios in life, however, as circumstances change, so should your estate planning. This post will help guide you through adjusting your will during a divorce, whether that be upon the initial filing or upon the journalization of the final decree terminating your marriage.
Why Update Your Will?
During marriage, it's common to name your spouse as the primary beneficiary in your will. However, upon divorce, you may wish to reconsider who you want to inherit your assets. If you don't update your will and something happens to you before your divorce is finalized, there is a risk that your soon-to-be-ex-spouse may still inherit your estate. Therefore, it is crucial to revise your will as soon as possible. Before you make any modifications to your estate planning documents, you should consult with an attorney to make sure that such actions do not violate any mutual or temporary restraining orders set by the court in your divorce proceeding.
What Changes Can You Make?
Powers of Attorney
It may also be important to modify powers of attorney to designate agents to act on your behalf if you become incapacitated during a divorce proceeding. Like an executor, it is common for most people to name their spouse as their agent under health care and durable powers of attorney. Unfortunately, however, if something happens to you while you are in the process of terminating your marriage, you may no longer want your spouse to make any important health or financial decisions for you. Instead, you may wish to modify your power of attorney to designate a family member or close friend to act on your behalf.
Beneficiaries
One of the first changes you may wish to make is to remove your spouse as a beneficiary. You might choose to replace them with your children, other family members, or even a charity you care strongly about. Again, make sure you consult with an attorney as to the consequences of these actions, as they may vary based upon the stage of your termination of marriage proceeding.
Executor
The executor of your will is the person responsible for distributing your assets according to your wishes after your death. In many cases, spouses appoint each other as executors. During a divorce, you may instead choose to appoint a trusted friend, family member, or legal professional instead.
Guardianship
If you have minor children, your will should specify who you wish to become their guardian should both parents pass away. In most cases, the surviving parent assumes custody. However, if you have concerns about this, it's important to discuss them with your attorney as it is often times negotiated or at the very least discussed during the divorce proceeding itself.
When Should You Make Changes?
It's advisable to review your will and estate planning documents as soon as you decide to proceed with terminating your marriage. While you may not be able to take immediate action, it can still be helpful to refresh your recollection as to the terms set forth therein, as well as to prioritize revising the document when advised to do so. Familiarizing yourself with the documents and their terms may also highlight the terms you’d like to modify once able. However, laws and local rules vary between jurisdictions, and may prohibit changes to your will once divorce proceedings have begun. Therefore, it's essential to seek legal advice promptly.
Post-Divorce: Review and Revise
It is also a good idea to revisit your will and estate planning documents following the finalization of your divorce. Your financial situation may have changed due to a property division. Likewise, you may have negotiated as a part of your agreement to modify these documents in a specific manner relative to your children. Taking care of these issues immediately following the termination of marriage will ensure that you don’t forget to modify the will or estate planning documents altogether.
Seek Professional Legal Assistance
Adjusting your will during a divorce can be a complex process. It's essential to get it right to ensure your wishes are respected. The experienced attorneys at Laubacher & Company specialize in family law and can guide you through this process. We understand the emotional challenges of divorce and are here to help with all legal aspects. Moreover, we can also assist if you’d like to get started on your estate planning altogether. It’s never too early!
Remember, the choices you make now will affect your loved ones' future. Make sure those decisions are informed, fair, and legally sound. If you need assistance adjusting your will during a divorce, don't hesitate to contact our team. Our goal is to support you in this difficult time and help secure a brighter future for you and your family.