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Estate Planning Documents And Divorce

Posted by Jess A. Lorona | Feb 21, 2018 | 0 Comments

planning documents divorce

If you are considering or going through a divorce, it is critical to go over your estate plans to ensure that any changes that need to be made are done. In the eyes of the law, you are legally married until the divorce is declared final. This means that if something should happen to you and your spouse is currently the person who would inherit any of your property, they will still inherit that property unless you have an attorney make those changes. This is also a good time to draw up estate plans if you do not currently have any.

The following are some of the important documents you should update if you are in the midst of a divorce.


Each state has its own laws on how a person's will should be handled if they still have their ex-spouse named. While some states declare any provisions made for your ex-spouse are invalid, other states declare these provisions are valid and your ex-spouse will inherit. There may be a legal gray area if you are still in the middle of the divorce process. Rather than risk leaving the decision up to the probate court, it makes more sense to have your estate planning attorney make any changes necessary to your will if your wish is that your soon-to-be former spouse not inherit.

If your will currently leaves any of your property to your ex-spouse's children, they will still inherit no matter what the laws are in your state. Divorce has no effect. If your wish is to remove them from inheriting, you can also make those changes in your will.


If you have a trust set up, it does not matter if your state has a law that excludes ex-spouses from inheriting what assets and property are in that trust if they are still named as beneficiary. If the trust you have set up is revocable, you will want to have your estate planning attorney change the beneficiary from your spouse to someone else right away.

Unfortunately, if the trust you set up is an irrevocable one and it does not stipulate that a divorce removes the current spouse as beneficiary, the trust cannot be changed. This is why it is critical to have a professional lawyer, like an estate planning lawyer phoenix trusts, assist you in all of your estate planning in order to avoid legal situations such as this one.

Guardianship and Power of Attorney

Many clients set up documents that will address how financial decisions should be made in the event they become incapacitated. Two tools available for this purpose are power of attorney and guardianship. If there is currently a power of attorney drafted that grants your spouse the authority as your power of attorney, the majority of states revoke this document when a divorce actions is filed by either spouse.

However, the divorce filing does not revoke any documents which name the spouse as guardian for the other spouse. The only way that could be revoked would be with the court's approval. The guardianship does not become void until the divorce is legally final.

In addition, you have normally appointed your spouse as your Health Care Proxy and they will be able to make health care decisions should you not be able to.  You would normally have to change this to remove the spouse.

State-Specific Laws

Connecticut has a law which revokes any dispositions of property and the former spouse's role as executor and trustee in a Will. CGS 45a-257c.  New York's law goes further and revokes beneficiary designations and other similar statuses. EPTL 5-1.4.

Remember, seeking guidance from a trusted estate planning lawyer, such as an estate planning lawyer in Phoenix, is crucial for navigating these complex legal matters and protecting your interests during divorce.

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Jess A. Lorona



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