Midst of Divorce: What to do about your Will?

Introduction/Overview:

You’re in the midst of a divorce and have big problems on your mind — don’t forget about your estate planning documents. Make copies and review all estate planning and related documents, and identify the rights your ex and your ex’s family and friends have. Discuss this early in the process with your divorce attorney, and assure that steps are taken, when appropriate, to obtain resignations of these people as fiduciaries or successor fiduciaries, etc.

I’m in the midst of a divorce, is there anything I should do concerning my estate planning documents?

Absolutely! The first step is to get clearance from your matrimonial lawyer before you take any steps, be that you don’t upset any apple-carts. Also, if your divorce lawyer doesn’t have great background in estate planning, consider having an estate planning attorney coordinate the efforts. While this might sound like more legal fees on top of what is often an already expensive and difficult process, wrong advice (or no advice) can be far more costly. And be sure the estate planner understands that he or she must follow the lead of the matrimonial attorney.

Should I do anything with my power of attorney if I’m divorcing?

If your ex-spouse or ex-brother in law were named agent, revoke the powers immediately. This must be done in accordance with the terms of the power originally given and state law. A great step is to collect all originals and copies of the document and shred them, but its often tough to know if you’ve really got them all, so other steps are necessary. This might include your attorney sending a certified letter to each named agent and successor advising them that the power of attorney, in which they are named, is revoked and they cannot be used. Ask your lawyer about recording (filing) the revocation document in a public record to put all third parties on notice. Your matrimonial lawyer might also include a revocation in the agreement. Trap: Don’t rely on state law that provides for a termination of a power in the event of a divorce. That law may not be effective until the divorce is finalized and costly damage can be done before that point. Also, state law may revoke the grantor of power to your ex, but will it zap your ex’s family members who might be named? Likely not.

What about the power of attorney at the bank?

Many bank and brokerage firms have their own forms for power of attorney or agent appointments. If your ex is listed on your safe deposit box, or other bank powers (e.g., checking, home equity line, etc.) take appropriate steps to remove him/her.

Do I do anything about the safe deposit box? It has my will and other documents in it?

Don’t make a move without clearance from your matrimonial attorney. If you sign into the box, there is a record and you’ll have to prove to your ex that you didn’t walk off with the diamonds and gold bullion that was there. Your attorney might arrange for a joint opening of the box so the contents can be inventoried.

What about beneficiary designations? The ex-to-be is listed on everything?

Revise as soon as your matrimonial lawyer gives you the green light. Don’t forget to revise all of them. Start making a list and collecting beneficiary designation (BD) forms from all insurance companies, brokerage accounts (if you signed any, find out to be sure), IRAs (Individual Retirement Accounts), Roth IRAs, retirement plans and so forth. The law is pretty clear, if you divorce and don’t revise beneficiary designations, the old ones stand, even if state law or your divorce settlement say to the contrary.

My ex is the executor and main beneficiary under my will. Can I get a new one?

As soon as your matrimonial attorney gives you a green light, revise your will. You might have to provide that your spouse is entitled to a certain minimum amount provided under state law (often called a spousal right of election), and whatever you provide might be changed by the final property settlement or divorce agreement. That being said, if you get hit by the proverbial bus, you probably don’t want your ex-to-be to get what your current will provides.