Getting Divorced? Be Sure to Review Your Estate Plan

If you are going through a divorce, or you feel that a divorce is a strong possibility in the near future, you are probably facing—or are about to be facing—a number of challenges and obstacles. Even in the best situations, it can be very stressful to negotiate the various aspects of a divorce agreement, including the division of marital assets and spousal maintenance. Couples with minor children often have even more to worry about. Once your divorce is finalized, however, it is probably time to take another look at your estate plan, as the new dynamic of your life should be reflected in your will and other planning documents.

Your Ex is Out by Law

A will is, in most cases, a very durable instrument that will withstand a variety of life changes and other contractual obligations. One of the few exceptions, however, is that a divorce or dissolution of marriage, by law, essentially eliminates your ex-spouse from any will created before the marriage ended. According to the Illinois Probate Act of 1975, a will executed prior to the dissolution of marriage “takes effect in the same manner as if the former spouse had died before the testator.”

This means, of course, that your ex-spouse is not entitled to any of the property you had intended for him or her to receive upon your death. On the other hand, depending upon the specificity of your existing will, it may be a little unclear what will happen now with that property. This also means that if you appointed your spouse to serve in a fiduciary capacity—such as the executor of your estate—your divorce will nullify that appointment as well. In fact, your entire will may need to be revamped to adjust for the serious life changes.

The Law Does Not Affect Other Ex-Family Members

It is important to keep in mind that the provisions of the Probate Act that pertain to ex-spouses after a divorce only apply to ex-spouses. They have no bearing on any parts of your will that leave property or assign fiduciary responsibilities to your spouse’s family members. For example, if your will specifies that your spouse’s brother is to receive a certain item after your death, your divorce will not automatically void that bequest. If you wish to remove your in-laws from your will, you must do so by amending your will or creating a new will altogether.

Review Other Planning Tools Too

Your will is not the only estate planning document that will need to be revisited after divorce. You will probably also need to consider making changes to powers of attorney, existing trusts, and life insurance policies to ensure the responsibilities and benefits are allocated to better address your changed situation. As with a will, a power of attorney is automatically affected by a judgment of divorce, so you will need to appoint a new agent.

Keeping Your Ex in Your Estate Plans

Depending on your situation, you might have good reasons for wanting to keep your former spouse in your will and other estate planning documents. If the two of you still get along well, for example, you might be perfectly happy to allow your ex to receive certain assets after your death. It is also possible to keep your ex-spouse in your estate plan so as to better help your children. If you want to keep your ex-spouse in your will, you must draft and execute a new version of your will after your divorce is finalized. This will eliminate any confusion about your wishes and complications that the provisions of the Probate Act could create.

Work With Our Qualified Professionals

When life changes like divorce or the death of a close loved one make an estate plan review necessary, it is important to seek the help of an experienced Naperville estate planning lawyer. The team at the Gierach Law Firm is equipped to help you make the appropriate changes so that you can regain the security and peace of mind that you deserve. Call 630-228-9413 to schedule a confidential consultation today.

Sources:

The Wall Street Journal

Illinois Probate Act of 1975

Illinois Power of Attorney Act