When married couples get divorced their current estate planning documents must be updated. For purposes of this article, we will assume a traditional-type divorce with the former spouses moving on with living separate lives.
Living Trust
Your Living Trust usually gives a percentage of your assets to your spouse upon your death. Often, married couples give everything to their spouse. The provisions containing these bequests are often in what is commonly known as the “A/B Trust.” Removing the ex-spouse will ensure the assets get to the right people upon your death. Removing the A/B Trust will also have the added benefit of greatly simplifying your living trust.
Your successor trustee or co-trustee is normally a spouse. It needs replaced. If you protect the assets for the children when you die, you should appoint one of your “people,” such as a sister, to manage the assets for the children so that your ex-spouse doesn’t control the money or spend it on their new spouse.
If you live in a community property state then you probably have a joint trust with your ex-spouse. These living trusts must be revoked in their entirety and replaced with a single trust.
Wills
Your executor is likely your ex-spouse and this document will need updated. If you have minor children, you get the right to nominate guardians for your minor children. The court is going to give priority to the parent of the children when you die, but if your ex-spouse has died or is incapacitated, then you can and should nominate the guardian in your will.
Financial Powers of Attorney
Many states have statutes that make the assumption that your ex-spouse has predeceased you if you divorce and that person is named as the agent under the financial power of attorney. That will prevent the ex-spouse from having the legal power to make financial decisions for you if you lose your mental capacity. But should you really have a document naming your ex-spouse to sign his/her name in place of your name? What if the financial institution does not know that you are divorced? Prepare a new financial power of attorney during or after a divorce as part of your estate planning updates.
Health Care Directives
Your health care documents likely give your ex-spouse the ability to gain access to all your medical records. A divorce does not remove that right. Your living will, advance directives or health care power of attorney all should be updated to remove your ex-spouse’s name.
Most of these estate planning documents are easier to replace rather than amend. Amendments can get lost or intentionally left out making them ineffectual. The exception is for living trusts if you live in a non-community property state—in that case, an amendment can be appropriate.
