Your estate plan might not be top of mind if you’re planning to divorce. However, if you have one (and you should), you’ll likely need to make some modifications to it. Your plan should reflect your needs and wishes now and after divorce.
Some changes can be made before your divorce is final. Others probably need to wait. It’s better not to put off changes that you don’t have to. No one knows what the future will bring, so it’s always best not to assume that we can delay modifications until a “better time.”
Everyone’s estate plan is unique, and no two divorces are alike. However, let’s look at some changes you’ll at least want to consider.
Powers of attorney (POA) and other administrative authorities
If you no longer want your soon-to-be-ex to have POA over your finances and/or health care if you become incapacitated, you can choose someone else at any time. If you’re giving someone else POA over your health care, you’ll need to make that change in your advance directive or another document you have in place that states your wishes for end-of-life care.
If your spouse is the designated executor of your estate and/or the trustee of any trusts, you can designate someone else at any time. Those are changes you have to make directly in your estate planning documents.
Inheritances like wills and trusts
Most people make their spouse the primary beneficiary for their assets in their will or living trust. If you wish to remove them as an heir, it’s probably best to do so after the divorce is final. In Colorado, as in most states, surviving spouses who have been disinherited have the right to seek an “elective share” of an estate.
If your spouse is listed as a designated beneficiary on any of your investment or retirement accounts, you’ll need to make any changes directly with the institution that holds the accounts. Making the change in your estate plan isn’t enough. It’s typically best to wait until you and your spouse have reached a property division agreement to make these changes so that nothing conflicts with any court orders in your divorce.
As noted, everyone’s situation is unique. That’s why it’s crucial to have sound legal guidance as you make these changes to your estate plan during and after your divorce.