Most marriages don’t start off with the end goal of divorce in mind. Unfortunately, nearly 1/2 of all marriages end in divorce. Statistics also show this number rises in 2nd, 3rd, and beyond marriages. Divorce is a prevalent aspect of the American lifestyle and it can create major problems for your estate plan. Fortunately, fixing those problems is fairly easy with the help of an estate planning attorney.
Three important items to consider during and after a divorce:
- Wills/Trusts. Many married couples designate their spouse as the primary beneficiary and trustee or executor of their Wills and/or Trusts. After a divorce it is important to revisit these documents. Even if your ex-spouse is automatically disqualified as a beneficiary under state law, there remains a potential that the ex-spouse may contest the will or other non-probate transfers. Such contest would potentially cost your estate significant legal fees. If you did not have an estate plan in place before your divorce, you may want to consider how a trust will help shield your assets from going to your ex-spouse if you have minor children. Don't think you have an estate to plan? Check out this article.
- Powers of Attorney. These give someone the power and authority to act on your behalf if you are incapacitated (durable) or concurrently with you. As with executor and trustee designations, many married couples name their spouse as the primary agent on these documents. Updating these documents will avoid the issue of your ex-spouse stepping into your shoes and handling your financial affairs or medical decisions.
- Beneficiary Designations. Life insurance, 401(k), IRAs, bank accounts, car titles, and real property may be transferred outside of probate under Missouri law. The process is commonly known as beneficiary designations and/or transfer/pay on death designations (TOD/POD). (see more about beneficiary designations here.) Under Missouri law, if your ex-spouse was a designee prior to the divorce, that designation is revoked on the date of dissolution or annulment. (see, Chapter 461.051 RSMo). While this law will work to eliminate your ex-spouse as a beneficiary, the next beneficiary in line may not always be clear if the documents are not updated. Note also, some clients may want to keep their now ex-spouse as a primary beneficiary (i.e. for life insurance where the court has ordered the spouse maintains life insurance for the benefit of the minor children); in these cases, it is necessary to re-accomplish the beneficiary designation forms AFTER the divorce is finalized in order to avoid the automatic revocation of §461.051.
Managing the emotional and financial stress of a divorce can be overwhelming. Creating clarity in your estate plan, safeguarding your family from legal issues down the road, and obtaining peace of mind that your affairs are in order shouldn’t be. If you're interested in learning more you can request a consult with Welch Law here.