Divorce and Estate Planning FAQs and Myths

Myth: Since I am divorced, my ex-spouse will receive nothing if I die.

Fact: It is really up to chance and state law. Some beneficiary designations, will designations, and asset titles are automatically revoke after a divorce if your spouse is named as the beneficiary, while others do not. For example, many retirement plans and employer benefits will pass to the named beneficiary, even if you are divorced from that person at your death, unless the plan documents themselves validly specify otherwise.  It is much better to be proactive and make conscious choices about your beneficiary designations, rather than leaving it to chance.

Myth: I cannot update my will or trusts because I am paying child support or alimony.

Fact: Unless you have a contractual will (which is rare), you are free to update your estate planning documents any time you want after a divorce is finalized. You may need to factor in ensuring that any alimony or child support claims that survive your death are paid, but it would be incredibly rare and unusual to require an inheritance be left to an ex-spouse in your will or trust. If you are paying child support or alimony, let us know so we can factor it into your plan.

Myth: Since I am divorced, my ex-spouse no longer has any authority under a financial or medical power of attorney document.

Fact: This may be true or it may not. It really depends on state law and the terms of your power of attorney documents. Under Missouri law, filing an action for divorce will automatically terminate a power of attorney naming the ex-spouse as agent. However, there’s always a risk that an unscrupulous ex-spouse may conveniently omit that the divorce has nullified a power of attorney and attempt to use the document anyway.

The better practice is to revoke your old power of attorney documents and create new ones to avoid any ambiguity. Additionally, if your ex-spouse is no longer set as your agent, then you will need to ensure that the documents either provide for a back-up person or you will instead need to prepare new documents to ensure your plan for your incapacity is still in place. Afterward, let your hospital, physicians’ offices, banks, or anyone else who may have a copy of your old powers of attorney on file know that you revoked the old one naming your now ex-spouse. If necessary, provide them with a new copy naming your new agents.

Frequently Asked Questions:

1. The divorce decree divided all the assets; the legal work is already done, right? Your divorce case may be final, but to be fully protected you must go through the estate planning process. Even if you created a plan while you were married, you are now a single person in the eyes of the law. Plus, the divorce decree may have divided the assets but it did not let you express who you want to leave them to now that you are no longer married. Estate planning lets you decide who you want to leave your assets to.

2. What should I discuss with an estate planning attorney after my divorce? Now that you are no longer married, your plans for your assets may be less clear than they once were. So, first explore who you would like to receive your estate. Second, be prepared to discuss who you want to handle your affairs when you are unable to do so. Third, make sure that you living up to the terms required in your divorce decree regarding child support and alimony.

3. Do I have to get my ex-spouse’s consent to make a new will or trust? Generally no. Once you are divorced, you are treated as a single person for estate planning purposes. As a result, there’s no permission you need to change your will or revocable trust. Irrevocable trusts vary, depending on their purpose. If you have an irrevocable trust of any kind, bring a copy with to your meeting and we can examine what options you have. If you have a contractual will (which is rare), you may need to discuss with your spouse or look at your divorce decree.