Divorce and Your Estate

Before you remove that ring...

Before you remove that ring...

Have you ever been divorced? If you are married, you can pat yourself on the back, as you belong to the successful side of the “50 Percent Club,” or the half of all marriages that succeed. A full 50 percent of all marriages fail, so you have to wonder at times if your marriage glass is half empty or half full. This thought may cross your mind, especially when you encounter bumps on that marriage road.

If you and your partner have not created a prenuptial or postnuptial agreement, and if your marriage truly is heading south, you need to make plans now to change your estate-planning documents.  You can change these documents even before the divorce is final. Months or years later, when that divorce does become final, depending upon your state’s laws, those divorce or annulment agreements revoke either the entire will or those provisions that favor the former spouse.

But, while you are separated pending a divorce, a change in your will and other estate or death-care documents will help you rest assured that your current wishes will be respected if you should die before that divorce is final.

You also need to remember to change the provisions that relate to your former spouse’s family, especially if your documents contain a residuary clause. Even if your state laws revoke that part of your will pertaining to your former spouse, it may overlook or ignore entirely those portions of your will that pertain to any member of your spouse’s family. This includes any positions you’ve granted to family members (especially if you designated her brother as executor of your will).

According to the book, Guide to Wills and Estates, third edition (pg 160):

Under recent revisions of the Uniform Probate Code, your state may also automatically revoke provisions of other estate documents, such as life insurance policies, in which the proceeds previously would have gone to the ex-spouse. But the odds are against this. Few states have adopted all the provisions of the UPC. It’s best to change any such documents, including IRAs, living wills, and survivorships, or have your lawyer do it. If your spouse is the beneficiary on your employer’s retirement plan, federal law prohibits you from removing him or her until the divorce is final. But be sure to make this change (if permitted by the divorce settlement) as soon as tihngs have been finalized.

Be sure to amend your trusts if needed, too, as well as any documents that declare your spouse as a power of attorney.

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