There is nothing easy about divorce and it does not help that on top of the personal strain there are a plethora of legal concerns you need to navigate. Among these, updating your estate plan as the process is ongoing is both especially important and easy to overlook. After all, navigating a divorce is overwhelming, but until the final papers are signed you remain married which means your spouse retains many of their legal rights to your estate. Few are comfortable with this and so, though it is yet another item to add to your to-do list, it is one best not ignored. While an experienced estate planning attorney is your best guide to ensuring your t’s are crossed and your i’s are dotted, the following 5 considerations represent a valuable guide to get you started.
5 Essential Estate Planning Steps to Take During a Divorce
1. Update Your Power of Attorney and Healthcare Directive
Divorces take time and in the interim, it is possible that the unthinkable could happen and you could end up incapacitated due to severe injury or illness. Should this occur and your spouse was previously named in your power of attorney and healthcare directive documents—as is the case for most married couples—they will be the person making financial and healthcare decisions on your behalf. To avoid this, both documents should be revoked and redrafted and, in some cases, your spouse will need to be advised of the revocation.
2. Update Your Will
While not all states allow you to execute a new will while navigating a divorce, Ohio does and so if you find yourself in the buckeye state it is wise to take advantage of this. In all likelihood, you do not want your spouse named as the executor of your estate, and, depending on the circumstances of your divorce, you might also want to name an alternate guardian to any minor children as a precaution against your premature passing.
3. Review Your Prenuptial Agreement
A good divorce attorney will have reviewed your prenuptial (or postnuptial) agreement in light of your divorce. If they did not, you should consider new counsel. When looking over your prenup, pay special attention to what your spouse may be entitled to in the event of your death, and when updating your estate plan ensure that your new terms concur with this document.
4. Amend Your Trust
Ohio law concerning trust management during a divorce is nuanced and complex. Depending on the terms of your specific trust, you may be able to make amendments that remove gifts intended for your spouse’s family and even update the person named as trustee. While entering into the details of this subject is beyond the scope of the present article, it is crucial to speak to an experienced estate planning attorney to assess your options.
5. Review Your Plan Upon Completion of Your Divorce
The updates made to an estate plan while navigating your divorce are usually temporary measures. When the dust has settled, it is important to once again review your terms and ensure your wishes and goals are properly represented. Naturally, this, too, is a step best taken in consultation with an experienced estate planning attorney.
To learn more about lessening the load and avoiding unintended estate planning consequences while enduring a divorce, do not hesitate to reach out to the Deliberato Law Center either by calling our office at (216) 341-3413 or writing us using the contact form on our website.