So you got divorced…ugh. Now, what do you do with your estate plan in light of this recent life change? You simply can’t leave the old plan (or lack thereof) in place.
Most states provide a mechanism whereby an ex-spouse cannot inherit after divorce even if named as a beneficiary in a will or on a life insurance policy. But, you CANNOT rely on this because it’s simply more complicated than that. Some retirement plans will pay to the ex-spouse if the beneficiary designation is not updated and some wills may provide for an ex-spouse; depending on the language chosen by the drafting attorney. So, a good rule of thumb is to update EVERY beneficiary designation after divorce. Your Columbus divorce attorney should explain all of this to you.
Existing Trust. An existing trust needs amended after divorce to reflect that you are now divorced. The designation of your spouse as beneficiary could be revoked upon divorce. But, this is dependent on the language used in the trust and your state. Additionally, your spouse could still be named as trustee and maybe you want somebody else acting as trustee. On the other hand, some ex-couples will name each other to act as trustee for their children because they know the biological parent is often in the best position to do what is best for the children. You need to objectively examine the relationship your ex-spouse has with your children to plot a path forward. Either way, the language will need updated to reflect the divorce.
Kids. If you have kids with your ex-spouse, you need to be concerned with a couple things. First, guardianship nominations. If you die and you have joint custody, your spouse becomes the full-time custodian because the surviving biological parent is the natural guardian. But, what if both you and your spouse die? When couples are married and they execute wills, they nominate a guardian in each of their wills…typically the same person. If you are now divorced, and if you nominate different people as guardians in your wills, then [Houston] we have a problem. When parents nominate the same person as guardian, the process looks like a rubber stamp as long as the nominee isn’t demonstrably unsuitable. When different people are nominated, then the court needs to apply more scrutiny and the process can get very ugly because each nominee needs to prove that they are the best person to take custody and that the other person is not the best. As you can imagine, this process can drag a lot of skeletons out of the closets.
Second, how do your kids inherit now? When married, you probably named your spouse as the beneficiary. Depending on the nature of your relationship, you may not want to do that now. If your kids are too young to handle an inheritance, then you probably want to setup a revocable living trust (RLT). The RLT will allow you to restrict their access to a level you are comfortable with. A typical trust may say that your children shall receive enough to provide for their health, education, support, and maintenance; which is almost anything they would “need.” Then, at ages 25, 30, and 35 (or any ages you pick) they can withdraw a third of the principal. This gives them a couple chances to screw it up before their final distribution. The big risk by not having a trust is that the child ends up with full access to the money at age 18 and makes poor decisions because they suddenly have more money than they can handle.
Finally, with respect to children, do not EVER name a person as a beneficiary trusting that they will provide for your children. This is reckless even if they can truly be trusted because they could get sued, divorced, or go bankrupt and lose all of the money that was supposed to be used for your children. Either setup a trust or name the children directly.
Power of Attorney. If you named your spouse as an agent under your power of attorney (POA), then that designation is likely revoked upon divorce. But, it may not be; depending how the POA document is written. Regardless, you need to review these documents to make sure the proper people are appointed to the proper positions. This is especially important if your ex-spouse is prone to act fraudulently.
The most important thing about estate planning after a divorce is that you recognize this moment as a trigger to re-examine your estate plan. Some of the triggers that you always look for are births, deaths, divorces, marriages, and disabilities.
If you need a Columbus divorce attorney, be sure to check our pre-screened attorneys at www.lawyeritrust.com.
Written by Lawyer I Trust staff attorneys. This is not legal advice. You should seek the advice of counsel before acting or not acting based on anything you read in this article.
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