Compliments of Sterling & Tucker, LLP
By: The American Academy of Estate Planning Attorneys
Divorce is a fact of modern American life. Approximately half of all first marriages fail, and the divorce rate for subsequent marriages can be as high as 73 percent. While divorce is commonplace, it’s not uncommon to overlook some important legal ramifications of splitting from your spouse.
For instance, suppose you have been divorced for several years, are happily remarried, and have children with your new spouse. While you probably made sure that your bank accounts and credit cards were appropriately renamed following the split from your first spouse, did you review your estate planning documents with a qualified estate planning attorney? If not, in the unfortunate event that you become ill or disabled, your new life partner may have to deal with more than just the emotional pain of your physical condition. If you failed to revise your Health Care Power of Attorney to remove your former spouse as Agent, and you are deemed incapable of making your own health care decisions, your physician may be obligated to turn to your ex to make critical choices. This is unlikely to be a happy scenario for anyone involved, particularly your already suffering spouse and children.
The scenario is equally disturbing if you pass away before you have examined your retirement plan in light of your divorce and subsequent remarriage. Your new partner, already devastated by their bereavement, will have to bear the financial and emotional strain of watching the assets in your 401(k) plan go to your former spouse because you failed to change the beneficiary designation on the plan. While divorce may end certain designations or bequests to your ex, it does not do so with 401(k) and other qualified plan assets.
Even if you’ve updated your Health Care Power of Attorney and changed the beneficiary designation on your 401(k), you still may not be in the clear. Did you make bequests to your ex-spouse in your estate planning documents? If so, your state laws may or may not invalidate these bequests when a divorce occurs. If they are invalidated and these assets then go to your children, your former spouse may still remain as the Trustee, effectively keeping control of your financial resources.
Make sure you consult an experienced estate planning attorney to revise your estate plan and remove your ex-spouse as Agent, Beneficiary, Trustee, or any other legal role in which your outdated estate planning documents may have placed him or her. Also, your estate planning attorney can help you designate appropriate new people, to serve in place of your ex.