Estate Planning After Divorce
If you have recently gone through a divorce, you may be feeling a sense of relief that the process is over, along with a combination of excitement and anxiety about what lies ahead. But before you get too far into your post-divorce life, there is one area that you should address: your estate plan.
It is understandable that after going through a long and arduous marriage dissolution process, the last thing you want to do is go through another pile of boring documents. But if you do not revisit your estate plan now, it may be more difficult to do it later on when you have other life events to deal with, such as kids going off to college, someone new in your life, or taking care of the aging parents.
One thing to keep in mind as you and your attorney go through your estate plan is that you are required to be in compliance with the terms and conditions of your divorce decree. And this brings up another important point.
The estate planning attorney/firm that you work with should ideally be one that is well-versed in divorce and family law as well. An attorney with an in-depth understanding of both areas of the law will be able to ensure that your estate plan is in keeping with your best interests while remaining compliant with your divorce agreement.
Here are some of the most important areas of your estate plan to revisit post-divorce:
Updating Your Will
In Virginia, a divorce or annulment revokes any provision of a will that is favorable to the ex-spouse unless the will expressly states otherwise (Va. Code § 64.2-412(A)). Still, it would be a mistake to rely on this code and assume that everything is in order. For one thing, you will need to look at the terms and conditions of the divorce decree to ensure that the provisions of the will match them.
Secondly, there is the issue of guardianship for any minor children that you may have. It is likely that your ex-spouse would become the guardian of any shared minor children if you die, but this might not always be the case. For example, maybe your ex-spouse has been abusive to your children or has otherwise been deemed to be an unfit parent. Whatever the case, the question of who will raise your children if you are no longer able to is too important to be left to chance.
Revise Your Living Trust
If you have a trust in which your ex-spouse is the designated beneficiary of your assets upon death, you will need to decide if you still want this to be the case. Again, there could be a provision in your divorce agreement that compels you to keep them as a beneficiary, and if that is the case, you will need to be sure that your trust complies with the provision.
Consider a Trust for Minor Children
After a divorce, one thing that you may want to think about is setting up a trust for your minor children. Consider that if your ex-spouse is their designated guardian, they will control your children’s assets until they reach the age of 18. But if you set up a trust, you can name anyone you want to have control and access to the assets within along with specific instructions about when and under what conditions these assets should be dispersed to your children.
Review Life Insurance Designations
A common provision in a divorce agreement is for one spouse to maintain life insurance with their ex-spouse as the beneficiary. A provision like this may mean that you cannot let your life insurance lapse or change the beneficiary designation. Have your estate planning lawyer look over your life insurance policies and the divorce decree to ensure that the two are fully aligned.
Update Powers of Attorney
In Virginia and most other states, if your spouse is named as agent in your financial and/or healthcare power of attorney (POA), this designation is automatically terminated when you divorce. If you do nothing, it would be transferred to a successor agent if you have one designated in your POA. This is something that should be reviewed, however, because you want to be sure you have the right person assigned to look after your affairs if you are no longer able to.
Work with a Skilled and Knowledgeable Virginia Estate Planning Lawyer
After a divorce, it is good to take some time and revisit your estate plan to ensure that everything is updated the way it should be. And as we have talked about earlier, it is best to work with an attorney that thoroughly understands both estate planning and divorce.
If you need help with your post-divorce estate plan in Virginia, contact Buck, Toscano & Terezkerz for assistance. To get started, message us online or call us today at (434) 977-7977 to set up a personalized consultation with one of our experienced attorneys.