Estate Planning in Preparation for Divorce

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Summary: If you are preparing for a divorce, there are some steps you can take to safeguard your estate plan and ensure your final wishes are carried out appropriately. Those steps involve updating your will, changing your medical decision maker and power of attorney, revising any trusts, and updating your beneficiary designations.

Ending a marriage can be an overwhelming time in anyone’s life. Forms are being filed, finances are being reviewed, and if children are involved, responsibilities and routines are being negotiated. A lot goes into successfully and legally dissolving a relationship. While none of it is easy or pleasant, it is an ideal time to review your estate and make the necessary changes to protect your assets from your soon-to-be ex. Taking the steps to do this can save you from future headaches and worry.

It is important to make any changes to your estate plan before the divorce is filed. Most courts have something called a Standing Order that goes into effect as soon as someone files for divorce. The standing order prevents you from doing a significant number of things and one of those things is changing the way your assets are distributed. If you do not get it done before you file for divorce, you will probably need to wait until the divorce is finalized, which is not ideal.

First, you will have to decide whether you still want to leave any property or assets to your spouse. Unless you have a settlement agreement, pre-nuptial agreement, ante-nuptial agreement, or some other contract preventing you from disinheriting your spouse, you can choose to take your spouse out of your will completely. If you happen to pass away while still married, your spouse will be entitled to something called a Year’s Support, but this would be true even if you left your spouse in the will. An estate planning attorney can best advise you on Georgia laws pertaining to will contests and whether there is anything preventing you from completely disinheriting your spouse. While you are in the process of updating your will, it is probably a good idea to remove your spouse as estate executor, as well.

Next, you should decide whether you still want your soon-to-be ex making healthcare decisions for you if you were sick or otherwise incapacitated. When designating a medical decision maker you want someone that understands your wishes related to medical treatments and is willing to speak for you on matters of your health and well-being. Be sure to update your advance directive for health care and name someone that you are more comfortable with to make these important decisions on your behalf. You can read more about the process of choosing a medical decision maker here.

Concerning powers of attorney, many married couples name their spouse as their financial and legal power of attorney. This gives the spouse access to certain accounts and assets, as well as the authority to manage those belongings on the other spouse’s behalf. If you are even considering divorce, it is a good idea to revoke those powers of attorney and designate a different trusted person. This is especially true if the divorce is not amicable. In Siedentopf Law’s latest Video Blog we explain how to properly terminate your current power of attorney.

Fourth, you should also have your estate planning attorney check to see whether any trusts can and should be amended. Are there gifts you bequeathed to your soon-to-be-former spouse that you want to remove? Do you still want your spouse managing any assets you left to your children? If changes need to be made to your trusts, an estate planning attorney can help advise you on Georgia law and what your options are.

Finally, as you prepare your estate for divorce, you should also update your beneficiary designations on items such as bank accounts, retirement accounts, and life insurance policies. Many are unaware that under Georgia law, divorcing your spouse does not automatically remove him or her from these documents. You can read more about the importance of updating your beneficiary designations here in Siedentopf Law’s blog.

Divorce can be an overwhelming process, but one of the best ways to cope is by concentrating on the new beginning and future possibilities. Knowing that your final wishes will be carried out can also create peace of mind during an already difficult time. If you have additional questions about the best way to secure your estate during divorce contact Siedentopf Law at (404) 736-6066 or visit EstateLawAtlanta.com and let us help you navigate this transition.

© Sarah Siedentopf and Siedentopf Law, 2018. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Siedentopf Law and EstateLawAtlanta.com with appropriate and specific direction to the original content.

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