What Happens to You Estate Plan After a Divorce?

Hi there. My name is Bridget Mackay. I’m an estate attorney in Petaluma, California, serving Sonoma and Marin Counties. I practice in estate planning, trust administration, and elder law.

Today I want to discuss what happens to your estate plan after divorce, or what can you do to protect yourself if you’re going through a divorce and what you should do after. The sad fact today is that nearly 50% of all marriages end in divorce and only 5% of couples will celebrate their 50th wedding anniversary together. If you aren’t one of those lucky couples, you need to know how to protect your assets and yourself through the dissolution or divorce process. Sometimes bad situations, as we all know in divorce, can get worse. But you can protect yourself and your children by doing these four things.

First is check and see what documents you have with your soon-to-be ex-husband or wife as the trusted agent for. In other words, is this soon-to-be ex-husband or wife the agent of your health care directive or your durable power of attorney? Some couples are okay with that if it’s an amicable divorce, but some aren’t. Take a good look at those documents and make sure the person you want to make health decisions for you if you can’t is on those, or the person you want to take over your financial affairs if you’re unable to is on those.

Second, during the divorce process, before it’s final, you can’t really move assets or money, or property around, or make a new trust yourself, and fund that trust with these assets without your ex-spouses consent. Because you won’t really know what you assets are gonna be officially, that are going to stay with you. During that timeframe, you can protect your interest in those assets before they’re divided by having a will made that will make sure any assets or any interest in things that belong to you will be given to the people that you want to get them under the terms you want to have them, and they won’t automatically go to that spouse if something were to happen to your during the process. Then once the divorce is final, you can create your own trust.

Third, check your beneficiary designations, especially after your divorce is final. Make sure your former spouse isn’t on anything you don’t want them to be on, and I’m talking about IRAs, retirement, insurance, annuities. A lot of these things will be addressed in the divorce and sometimes the settlement gets written up, but the actual change on those assets themselves don’t get done, so make sure you do that. Finally, when the whole process is done, make sure you see a qualified estate planning attorney and establish a new plan for yourself and your family.

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