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Updating estate-planning documents at divorce

Dear Clients and Friends,

The story of a divorcing couple in Arizona demonstrates why you need to update your estate plan at divorce.

The couple, who were in their early 40s and had been married for several years, had created a multimillion dollar business together. When they filed for divorce, the process became bitter and full of disagreements about small issues. They were thinking in the moment about the immediate dollars and cents, but didn’t consider what would happen with assets at death.

One night the wife had dinner with friends. Sadly, she died in a tragic car accident on her way home.

Neither she nor her husband had changed their wills. As a result, everything she had, including the half of the business that belonged to her, went to the husband. Her family was left with nothing.

In this case, an interim will could have stated that her share of the marital estate would go to her parents.

The lesson: during divorce, update your will to ensure your assets go where you want them to go, such as to your parents or to a child from the current marriage or a previous one.

In addition to changing your will, you must also change the following:

Power of attorney documents.

It’s essential that you change your powers of attorney during divorce. You need a medical power of attorney to ensure that your estranged spouse can’t make medical decisions on your behalf. Remove any financial powers of attorney as well.

Guardian for your minor children.

If you have chosen a guardian for minor children in your will, any change will have to be agreed to by your estranged spouse. You cannot create an interim will that excludes the other parent as a guardian, unless your spouse’s parental rights have already been removed.

Accounts with named beneficiaries.

While you’re in the process of divorcing, you typically cannot change the named beneficiaries on 401(k) plans or life insurance policies, though if needed, you might be able to obtain an interim order to authorize a change. Once your divorce agreement is in place, it might state which beneficiary designations can and cannot be changed.

Once your divorce is final, remember to review interim documents and other documents again. Any trust you have with your former spouse will have to be revoked or amended. The assets will have to be moved to a new trust.

We continue to offer a free phone evaluation of your legal matter. We look forward to hearing from you to see if we can of help.



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