Estate Planning After Divorce

June 21, 2012
Updated on November 18, 2020

Divorce can be a painful and overwhelming process, as anyone who has gone through it knows. Once the big decision to go separate ways has been made, there are more decisions and seemingly endless paperwork—separating and retitling assets, selling or refinancing the family home or relocating to a new one, custody issues if there are minor children, and college expenses for older children. These tasks and more must be completed to be able to move on with your lives.

Often overlooked, but just as important, are changes that need to be made in your estate planning. Most people would agree that their ex-spouse is the last person they want to inherit their assets when they die—or to have that person make life and death decisions for them. But that is exactly what can happen if these documents are not updated. While some states do have provisions designed to keep an ex-spouse from inheriting from you, they vary greatly by state and they do not apply to all of your assets. You should not rely on the state laws alone, as laws change and, depending on your situation, they may not apply to you. The only way to be sure your assets will go to those you want to have them is to update your estate planning—and the sooner the better.

Beneficiary Designations

Assets that let you name a beneficiary (life insurance policies, employer retirement plans, individual retirement accounts, annuities, health savings accounts, investment accounts and bank accounts, etc.) are not controlled by a will or trust. Instead they will be paid directly to the person you have listed as your beneficiary, unless that person is deceased, a minor, or incapacitated when you die (in which case, a court may step in). You probably named your spouse as beneficiary when you were married, so you will need to change that unless you agree otherwise in your divorce agreement. Usually all you need to do is request the appropriate form and list a new beneficiary. However, naming the right beneficiary is critical.

If You Have Children

If you name your children as beneficiaries and they are minors when you die, a court guardianship must be established for them until they become eighteen years old—at which time they will receive the entire inheritance. At that age, they may decide to spend the inheritance on an expensive sports car and fun times instead of on their college education. The other parent (your ex-spouse) could be named by the court to manage the funds while your children remain minors.

Naming another individual (for example, your parent or sibling) as beneficiary with the understanding they will use the money to care for your children until they are older is also risky. You have no guarantee they will follow your instructions, they may be tempted to use the money for their own needs, and the money would be exposed to their creditors. Depending on the value of the assets, it may also cause the named individual to have negative gift tax consequences.

Naming a trust as the beneficiary instead and selecting your own trustee (which may, indeed, be your parent or sibling) is a much better choice. A trustee can be held liable if they misuse the trust assets. You can keep your ex-spouse from having access, and you can control when your children will inherit. Money that stays in the trust is protected from irresponsible spending, creditors, and even spouses.

Retirement Accounts

Naming the right beneficiary is especially important for these accounts because of the tax consequences and the potential for long-term tax-deferred growth. After you die, the retirement account has to be distributed to the beneficiary within five or ten years or, if the beneficiary qualifies for special treatment, the account can be distributed over the beneficiary’s lifetime. This is a very complicated field of tax law and it is important that you consult an estate planning attorney before you make any decisions regarding the beneficiary of your retirement accounts.

Your Will and Living Trust

If you do not update your existing will or trust, your ex-spouse may inherit your assets. If they have remarried or remarry in the future, your assets could end up with the new spouse and their children—completely disinheriting your own children or family! If you provide support to your parents or others, be sure to include them in your estate plan.

If you have minor children, you need to name a guardian for them in your will. (Even if you have a living trust, a simple will is required to name a guardian and to direct any forgotten assets into your trust.) Upon the death of one parent, the surviving parent will usually become the sole guardian. But if your ex-spouse has also died, had their parental rights terminated, or becomes an unfit parent, the court would have to appoint a guardian and would appreciate knowing your wishes.

Health Care Powers of Attorney and Living Wills

These are medical documents that let you name someone to make health care decisions for you if you are unable to make them yourself. Most married couples name each other. But now that you are divorced, you probably do not want your ex-spouse to make life and death decisions for you. You can name a parent, sibling, close friend, or an adult child.

Financial Powers of Attorney

Again, most married couples give each other power of attorney so that one can manage the other’s financial affairs without interruption. These powers are often quite broad, giving this person the ability to buy and sell real estate, open and close financial accounts, change beneficiary designations, collect government benefits, etc. Instead of your ex-spouse, you can name a parent, sibling, close friend, or adult child.

You Need Professional Guidance and Assistance

If you have recently gone through a divorce, you may feel you have had enough of attorneys for a while. But you need an experienced attorney more now to help you with updating your estate planning than you did when you were married. Do not procrastinate on this. Make sure you protect yourself, your children, and others who depend on you. If you have a complicated divorce agreement, it is especially important that you first consult an estate planning attorney before taking any actions over your assets. Not doing so could mean making a costly mistake where you violate the divorce agreement and possibly lose control over some of your property.