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Estate Planning in the Face of a Divorce: Update Your Estate Documents

| Apr 7, 2021 | Estate Planning, Estate Planning, Trust, Trustee |

When a married person is facing divorce, updating their estate planning documents is a must. Why? Because of the potential ramifications in the event of an illness, incapacity, or death. Most married couples name their spouse on their estate documents. This might include documents such as a Durable Power of Attorney, a Power of Attorney for Healthcare, a Living Will, a Last Will and Testament or a Living Trust. It might include designations on financial accounts, life insurance or retirement accounts. The question is, if you are separated or getting divorced, do you want to leave those designations in place? Most people would respond with a resounding “No!”

A Durable Power of Attorney (“DPOA”) authorizes a person to act for another on financial matters. Would you want your to be able to go to your bank and remove funds without your permission? If you do not update your DPOA to name someone other than your spouse, that could be the result.

A Power of Attorney for Healthcare (“HCPOA”) authorizes a person to act for another on medical and healthcare matters. Would you want your soon-to-be ex-spouse to be able to speak for you to your physicians or medical providers? If you do not update your HCPOA to name someone other than your spouse, that could be the result.

A Declaration of Living Will (“Living Will”) expresses your wishes in the event of a terminal illness, an end-stage condition, or a permanent vegetative state. It also designates a surrogate who can speak up for you in the event of an end-of-life situation. Would you want your soon-to-be ex-spouse to be able to speak for you on end-of-life matters? If you do not update your Living Will to name someone other than your spouse, that could be the result.

A Last Will and Testament addresses who will oversee your probate estate, who will be your beneficiaries, who will raise your children, and who will oversee assets for your children if they are under-age. Would you want your soon-to-be ex-spouse to be in charge of these matters? If you do not update your Will to name someone other than your spouse, that could be the result. [Admittedly, some powers of an ex-spouse under a Will end at divorce—but why take a chance? See Section 732.507, Fla. Stat.]

A Living Trust, also known as a Revocable Trust (“Trust”), is similar to a Will in that it addresses who will oversee your trust estate, who will be your beneficiaries, and who will oversee assets for your children if they are under-age. Would you want your soon-to-be ex-spouse to be in charge of these matters? If you do not update your Trust to name someone other than your spouse, that could be the result.

If you have minor children, having an updated Trust is especially important when getting divorced. If you die and do not place your assets into a Trust for the benefit of the children, then a guardianship will have to be established for each minor child. Guess who will have first rights to be the Guardian to oversee the assets for the children? Correct! It likely will be your ex-spouse, the parent of the children. Is this what you really want to occur?

There’s another reason to update your estate documents when getting divorced. When you were married, if you had an emergency, e.g. an accident or injury, in many cases your spouse could act for you. Now that you are to be single, who can act for you? Who can speak for you? If you have the basic estate documents mentioned above, you will designate who can act and speak for you.

If you are getting a divorce, or if you are separated from your spouse even if divorce is undecided, seek counsel from an estate planning attorney to update your estate documents. Don’t be a victim of a spiteful soon-to-be ex-spouse. Take away their power and authority.

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