Why Divorce Is the Best Time To Rethink Your Estate Plan

Divorce is an emotional time. It’s also a busy time. If you’re currently going through a divorce in Washington State, you’re probably digging through piles of papers looking for bills, statements, and other important documents. During that search, most people, however, forget to revisit their estate planning documents. They either don’t think about them at all, or they have this task on their to-do list for when their divorce is finalized.

If you’re one of those people, congratulations. It’s true; you will need to re-examine your estate planning once you’re divorced. However, while your divorce is ongoing, there are specific issues you should address regarding your estate plan to ensure your interests are protected.

Depending on the document, Washington State laws may preclude you from making certain changes until your divorce becomes final. That said, you may be able to make some before that and should be thinking about your next steps for the others as soon as your divorce is completed.

In the meantime, here are the issues you should be thinking about that pertain to your existing estate plan, even before you’re divorced. The changes you make now can save you and your loved ones a lot of problems should you die or become incapacitated during the divorce process. 

Power of Attorney

During (or before) marriage, it’s common for couples to each create a durable power of attorney for their spouse. A power of attorney grants access to a named individual, such as a spouse, to any accounts or assets in their name to act in their stead. A durable power of attorney is a type of power of attorney. It will stay in effect after a person becomes incapacitated.

Even if your divorce is not contentious and you trust your spouse implicitly, it’s still a good idea to revoke a power of attorney if you have one. Relationships can sour quickly during a divorce, and you don’t want this very powerful document accessible for potential abuse by a vindictive spouse.   

Health Care Proxy

A health care proxy allows a named individual to make important decisions about your treatment if you should become incapacitated. These include end-of-life decisions.

Choosing the appropriate person to be your health care proxy requires a lot of faith on your part that the person you designate will carry out your wishes. Though that may have been your spouse at one time, your soon-to-be-ex-spouse may no longer be the person you would want to make such critical decisions.

Health care proxies have become particularly relevant given COVID-19. Without one, a court can name a guardian or conservator to act on your behalf. This process can take time and become an added expense, and the choice the court makes may not be the person you would want if you had a say.

Beneficiaries

Your will, trusts, life insurance policies, bank accounts, and retirement accounts allow for designating beneficiaries. Again, that may have been your spouse at one time. However, sentiments change.

Because you’re still legally married, you may face restrictions about which beneficiary designations you can change. Depending on the type of document or account you’re considering, you may not be able to remove your spouse entirely or at all until your divorce is finalized.

Guardianship of Children

Should you die before your divorce becomes final, guardianship of your children will go to their other parent in most situations. So even if you designate someone apart from your ex to be your children’s guardian, their parental rights will generally prevail.

Even so, you’re still free to designate an alternate guardian in the event your children’s other parent should predecease you before you finalize your divorce

Prenuptial Agreement and/or Postnuptial Agreement

Many couples will have a prenuptial agreement or postnuptial agreement in place when they divorce. If they were created correctly, they could hold a lot of weight. Your divorce lawyer will refer to them as they draft your divorce agreement.

Therefore, when revising any estate planning documents, you should consult the terms of your prenup or postnup documents if you have them. What’s contained in them should match what’s in your new estate plan to avoid any contest later.

After Your Divorce Is Finalized

Once your divorce is finalized, you should again revisit your estate plan and do a legal checkup. At that time, you can make any additional changes you were prohibited from making before and make sense now that you’re divorced.

You should also plan on reviewing your estate plan periodically or whenever a life passage occurs. Those can include another marriage, divorce, birth, death, or you simply change your mind about how you would like to structure your estate plan moving forward.  

Consult a Lawyer

If you’re thinking about divorce or are in the process and would like to discuss revising your existing estate plan or putting one in place, our Seattle area lawyers can help. Our estate planning attorneys have extensive experience and can develop an estate plan that works well for you and your family. We’re here to help. Call our office today.

Subscribe to our newsletter for more great content and a little something extra delivered right to your inbox every other week.  

STAY UP TO DATE

Subscribe to our newsletters

 
Subscribe to one or more of our newsletters, delivering meaningful insight on topics that matter to you and your family.

FURTHER READING

Latest Blog Posts

As a co-parent during or following divorce, you may no longer have the authority to make certain unilateral decisions regarding your children’s health and well-being. The restrictions on making decisions unilaterally are most commonly related to matters that are considered…

The decision to move forward with a divorce is often a difficult one. The end of a marriage can affect your perspective on the memories you have from the relationship, as well as your expectations for the future. Divorce can…

Choosing fiduciaries is crucial to estate planning. In any one estate plan, there could be a variety of roles that a fiduciary might fill, such as an executor, agent, or trustee. It need not be a person either; a fiduciary…

                  Raising teenagers can be difficult under any circumstances, but add divorce to what can already be a difficult time in child's life and many parents feel find themselves grasping. We have gathered some of the most important things you can do as a parent to help your teenager man...

A revocable trust or living trust is an instrument created, as part of your overall estate plan, for the purpose of protecting your assets, including investments, during your lifetime. It can also allow for a smoother transition of said assets…

A prenup can take many of the “what ifs” off the table in the event of divorce. What is separate property, who might have to maintain life insurance, and who will keep the heirloom piano that’s been passed down for…

Many people find it challenging to get started with estate planning. From confusion about the process to denying that estate planning is necessary, there are various reasons why people do not want to create an estate plan. That said, estate…

After divorce, it is common to experience feelings of shame. That shame could arise from multiple sources, including feeling that you let your spouse or children down or because you are worried about what others may think of you. Regardless…

Estate planning can feel overwhelming, but it is necessary to ensure your assets are in order and your loved ones are taken care of. Establishing an estate plan can also make certain issues easier for you and your family during…

In Washington state, alimony is referred to as maintenance. Maintenance is court-ordered spousal support payments that one spouse makes to assist with the living expenses of the other spouse for a period of time and for a particular purpose.  Maintenance…