Updating Your Estate Plan Following a Divorce

 Posted on January 23, 2017 in Divorce

There are dozens of details surrounding a divorce. One that may get overlooked is estate planning. Most couples have previously signed wills, powers of attorney, and advances directives for health care naming the other spouse as their agent. Once a divorce is final, however, these documents may no longer reflect each party’s wishes.

Wills

When it comes to estate planning after divorce, Illinois law actually provides some assistance. If you executed a will prior to divorce that named your then-spouse as executor or a beneficiary of your estate, any such provision is automatically revoked once the divorce is final. The rest of your will remains intact; only those provisions affecting your former spouse are invalidated.

That said, there may be circumstances where you want your spouse to remain an executor or beneficiary. For example, if you plan to leave your estate to your minor children, you may still wish for your spouse to serve as executor. If that is the case, you need to make a new will reaffirming your intentions.

Similarly, if you want to make sure your estranged spouse has nothing to do with your estate, it is a good idea to make a new will as soon as possible. You do not need to wait for your divorce to become final.

Powers of Attorney

A power of attorney is a legal document naming someone to act on your behalf if you are incapacitated or unable to do so. Illinois powers of attorney are considered “durable” unless the person specifies otherwise. This means a power of attorney remains in effect even after the signer is incapacitated. A person may have separate powers of attorney for decisions regarding property and health care, respectively.

Similar to the law governing wills, Illinois presumes a person intends to revoke a power of attorney granted to a spouse prior to the divorce. Technically the law states a spouse “shall be deemed to have died at the time of the [divorce] judgment.” This permits the power of attorney itself to remain valid, while only removing the ex-spouse from the position of agent.

Beneficiary Designations

A will does not necessarily cover all of your assets. There are many types of non-probate assets that pass to a designated beneficiary. This includes retirement accounts, life insurance policies, and even some brokerage accounts.

Unlike Illinois wills and powers of attorney, beneficiary designations are generally not automatically revoked upon divorce. In other words, if your ex-spouse is named as the beneficiary on your life insurance policy, and you fail to change that after the divorce, the designation remains valid. Therefore, if you do not want your ex to enjoy a windfall after your untimely death, it is your responsibility to change the beneficiary designation.

This is only a brief overview of the types of estate planning problems that may arise during and after a divorce. An experienced DuPage County family law attorney can provide more comprehensive advice on these and other subjects related to divorce. Contact our office today to schedule a free consultation.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2104&ChapterID=60

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2113&ChapterID=60