The statistics don’t lie and they don’t change. Approximately fifty percent (50%) of first marriages end in divorce, seventy-eight percent (78%) of second marriages end in divorce and ninety-three percent (93%) of third marriages end in divorce. Of course, on the other side of the coin, one hundred percent (100%) of marriages that don’t end in divorce, end in death. But I digress.
The lead-in is meant to make the point that, among the many things a newly divorced person needs to do, is review his or her estate plan.
Divorce may, but usually does not automatically remove the ex-spouse from a beneficiary position or a fiduciary position. Most family law practitioners recommend a stop at the estate planning lawyer’s office the day after the ink is dry on the Decree of Dissolution, but I recommend a month before that date. Below is a list of some common estate planning instruments and what effect, if any, the divorce decree has on each one.
- Last Will and Testament — The ex-spouse will be presumed to have predeceased the Testator for all purposes of the Will.
- Revocable Trust — The ex-spouse will be presumed to have predeceased the Settlor for all purposes of the Trust.
- Life Insurance Policies — If the ex-spouse is designated as a beneficiary, that designation remains valid unless the insurance company has other policies stated in writing. If minor children are involved, review the decree to determine if a change needs to be made from a beneficiary designation to the Trustee of a minor’s Trust is more appropriate.
- 401(k), IRA, ROTH, etc. — If the ex-spouse is a designated beneficiary, that designation remains valid.
- Healthcare Representative Appointment — If the ex-spouse is designated, that designation remains valid; however, the ex-spouse is held to a fiduciary duty to put the patient’s best interests first.
- Power of Attorney — If the ex-spouse is designated, that designation remains valid; however, the ex-spouse is held to a fiduciary duty to put the incapacitated person’s assets first.
Divorce may close a chapter in the book of your life and open a new one, but it cannot change your eventual destination and the need to plan for that outcome.
Kent Emswiller is managing partner of Emswiller, Williams, Noland & Clarke, PC, a preferred legal services provider of Elements Financial. Mr. Emswiller has been selected by his peers as a "Super Lawyer" for Indianapolis Monthly magazine and as a member of Best Lawyers in America®. He is a past lecturer at Butler University’s School of Business. He concentrates his practice in estate planning, administration and litigation and pre-marital agreements.
This information is provided for informational purposes only. It does not constitute legal, tax or financial advice. Consult with your tax, legal or financial adviser before taking any action.