Separated or Filing for Divorce? Here are Three Estate-Planning Documents to Update When Your Relationship Breaks Down
Divorce is a time of tremendous change—with emotional, mental, social, financial, and logistical burdens that can often feel overwhelming and never-ending. You could be legally separated from your spouse for months or years before initiating divorce, and divorce proceedings are often lengthy. During the transition between deciding to end your marriage and the finalization of your divorce, not having an estate plan—or not updating a plan you created with your spouse—can prove especially risky.
Treetown Law is here to support you through this difficult time. During separation or divorce proceedings, you should consider creating or updating the following three documents:
Durable Power of Attorney for Finances. When married couples execute powers of attorney, they often name each other as agent. A power of attorney may give your spouse the ability to handle your personal finances and act on your behalf even without a finding of incapacity. In many states (including Michigan, Illinois, and D.C.), filing for divorce will not automatically nullify a power of attorney designation. It is crucial, then, for you to revoke your current power of attorney. Revocations must be in writing, witnessed and notarized. You must also give your spouse notice that you have revoked their powers. If your divorce is contentious, you should contact your financial institutions to let them know that you have revoked the DPOA naming your spouse and provide them with a new or updated DPOA.
Healthcare Advocate Designation. Patient advocate designations come into play when you are unable to express your wishes regarding healthcare. In some states (including Michigan), a divorce filing will automatically remove your spouse from your patient advocate designation. If you have an alternate person designated, that person will become your patient advocate. That said, as a practical matter, your healthcare providers may not know that you filed for divorce. Your safest course of action is to revoke or amend your designation, have your new designee sign an Acknowledgment of Agent, and put your revised designation on file at your doctor’s office.
Your will and/or trust. In most states, you cannot fully disinherit a spouse in your will or trust, because intestacy laws allow spouses to elect against a will and take a portion of their intestacy share instead. Making a whole new estate plan will often have to wait until after your divorce is final, because the division of marital assets will be part of the divorce settlement. You can, however, take some interim steps to protect your estate should anything happen to you while your divorce is pending.
Personal representative for your will:
If you have a will and your spouse is designated as your personal representative, you should consider amending it right away.
Beneficiary designation in will or who benefits if you don’t have a will:
If your spouse is a beneficiary of your will, you can specify that they are only entitled to the amount of the statutory elective share for disinherited spouses in your state. This is usually a smaller percentage than the portion left to your spouse if you die without a will in place.
If you do not have a will, your (soon-to-be-ex) spouse will inherit from you based on the intestacy law in your state. In Michigan, that is more than half and up to all of your estate, depending on whether you have other surviving family members. In Illinois, and the District of Columbia, your spouse will take at least half and up to all of your estate, depending on whether you have other surviving family members.
Guardian of the person and property of your minor children:
If you pass away without a will, your ex-spouse, if they are a legal parent (and in the absence of any allegations of abuse and neglect), will become the sole custodian of your children and the conservator for any money you may leave for them.
If you feel that your spouse is unfit to care for your children should something happen to you, you will want to name a different guardian in your will and include a writing that explains your concerns about your spouse. Should anything happen to you, a judge will take this writing into account.
Even if you are OK with your spouse having sole custody of your children should you pass away, you may want to name someone you trust to serve as guardian of the property (also known as conservator) to manage the assets you leave to your minor children.
If you have a separate trust that leaves money to your minor children and you do not want your spouse to manage that money, you should update your trustee designation.
While the burdens of going through a divorce are substantial, there is another side—and you will get there! If you are thinking about divorce or currently going through the process of one (or have a loved one who is), please reach out. Treetown Law is here to help you get to the light at the end of the tunnel.
