When you have experienced the completion of a divorce, the last think you may want to think about is your death. However, the conclusion of a divorce is a time you should think about planning your estate. It is likely that you have documentation of your assets and debts as a result of the divorce and it is an ideal time to work on your estate planning.
During the marriage, you and your spouse may have diligently thought about estate planning for your family and executed wills, powers of attorney and health related document. During the marriage, you probably automatically listed your spouse as the beneficiary on life insurance, retirement benefits and bank accounts. After you are divorced, it is important for you to think about how you would like your estate to be handled in the event of your death and how you would like your assets distributed. There are several areas that you should consider reviewing upon your divorce:
If you executed a will naming your ex-spouse as a beneficiary or executor, you need to execute a new will revoking the prior will and leaving your property as you desire. Although some states remove your former spouse from estate documents by statute upon a divorce, not all do and it is best practice to execute a new will.
Life insurance proceeds pass outside of your estate to the named beneficiary although you may name a trust as beneficiary. If your ex-spouse remains the named beneficiary, then he or she will receive the proceeds. It is imperative that you change the named beneficiary to leave your life insurance to your chosen beneficiary. If you have minor children, you may want to set up a trust to benefit the minor children and fund the trust from the life insurance proceeds.
Retirement Benefits and Financial Accounts
Retirement benefits such 401(k)s, IRAs, pension, annuities and other financial accounts such as checking, savings, and certificate of deposits should be reviewed after a divorce to determine the names that have access to the accounts, if a beneficiary has been named and if it should be changed.
Guardianship of Your Children
Hopefully, you will be comfortable with your ex-spouse having custody of your children in the event of your death but if your ex-spouse predeceases you, it is advisable to have named a guardian of your choice in your estate planning. If your ex-spouse is unfit, it is also a good idea, although not binding on the Court, to have named an alternative guardian to your ex-spouse for the consideration of the Court.
As a married couple, you are typically able to transfer a higher value of assets to your heirs than a single person without estate taxes or before they apply. If you have a high value estate, you should consider tax considerations in your new estate planning decisions.
What happens if I remarry? If you remarry and have no children from your first marriage, you may need to revisit your estate planning to see if you new spouse should be added as executor, for example. If you have children from your first marriage and would like some of the assets received pursuant to the divorce to flow to your children, you may need a pre-marital agreement to protect the children from first marriage and to allocate the property that remains your separate asset to be transferred to your children upon your death. You should make sure your pre-marital agreement and estate planning are in sync with each other.
Here is a check list of documents to be reviewed and updated:
- Powers of Attorneys
- Life insurance beneficiary
- Health care power of attorneys
- Financial accounts with right of survivorship
- Retirement account designations
- Titles to assets