Do I Need to Update My Estate Plan after Divorce?
It’s recommended that you update your estate plan after any major life event, including divorce, because it’s likely that your beneficiaries and/or agents have changed. The most important estate planning documents to update are your Last Will and Testament, Power of Attorney, and Health Care Directive because they address things like your assets and property, your personal health care wishes, and who your representatives will be in an emergency.
Updating Your Last Will and Testament after a Divorce
is an estate planning document that you use to describe how you want your assets to be distributed after you pass away.
Although it’s not unheard of to keep your ex-spouse as your primary beneficiary in your Last Will, most people choose not to do so. In some states, filing a divorce revokes an ex-husband’s or ex-wife’s right to any gifts or bequests in your will, and it can also revoke their right to act as your executor.
Although you can amend your original will with a
, it’s often best to create an entirely new Last Will and Testament with revised beneficiaries and executors. Most wills include a clause at the beginning that revokes all prior wills and codicils if you’re creating a new one, so it helps to ensure that the previous document will be nullified.
Many people choose to make their children their new primary beneficiaries (or a new spouse in some cases), but you can also choose to leave assets to friends, family members, or charities.
Tip: If you still want your ex-spouse to be the primary beneficiary or to act as the executor of your estate, then creating a new Last Will can help to ensure your recent divorce hasn’t revoked their inheritance or responsibilities.
Updating Your End-of-Life Plan after a Divorce
An End-of-Life Plan
is a document that lets you outline your wishes regarding your remains, funeral or memorial service, obituary or death notice, and more for after you pass away.
Though there are usually no severe consequences from failing to amend your End-of-Life Plan after divorce, we recommend updating your instructions in the document to reflect your current situation. That way someone else, as opposed to your ex-husband or ex-wife, is in charge of your burial and memorial.
An End-of-Life Plan also allows you to appoint someone to carry out your end-of-life wishes. Many people choose to appoint the same person as the executor of their Last Will. If you’re someone whose appointee and executor are both your ex-spouse, you may want to consider choosing someone else to carry out your last wishes both in your End-of-Life Plan and Last Will.
Appoint a Guardian for Your Children
When one parent dies, even after a divorce, the other parent typically takes guardianship over minor children. However, it is important to review this section in your new will to make sure it aligns with your ex-spouse’s new will as well. You want to make sure that both of you are agreeing on the same guardian for your children in the (unlikely) event that both of you pass away at the same time.
If a parent with sole custody of their children dies, courts tend to favor the other biological parent as the new legal guardian, unless they deem the surviving parent as "unfit" for guardianship. Naming a guardian in your will can help to ensure that your children are taken care of by someone you know and trust.
Updating Your Power of Attorney after a Divorce
Power of Attorney
is a document that allows you to appoint an agent (attorney-in-fact) to make financial decisions on your behalf should you ever become incapacitated in the short- or long-term.
Most recently divorced individuals no longer wish to have their spouse act on their behalf as an agent or attorney-in-fact after a separation.
If your ex-partner was named as your attorney-in-fact in your Power of Attorney while you were married, and now you wish to name someone else to represent you in the event of your incapacitation, you will need to revoke their title with a
Revocation of Power of Attorney
document. You also have to notify them in writing to let them know their role as your agent has ended.
After you’ve completed the revocation process, you can create a new Power of Attorney and name a new attorney-in-fact. It’s common practice to ask the person you want to be your agent before naming them in your POA, but you are technically not required to do so.
Updating Your Health Care Directive after a Divorce
Health Care Directive
(also known as an Advance Directive or a Living Will) is a document that allows you to describe your preferred medical treatments and end-of-life care should you become incapacitated and not be able to express those wishes yourself.
To update your Health Care Directive, you will need to make sure that all previous copies that you may have given to your doctor or any agents are returned to you and/or destroyed. This ensures that the new directive will be the one that’s enforced. Once you have taken care of any previously existing copies of your directive, including any digital copies you may have stored on your computer, you can create a new one.
Again, you only need to update this document if your ex-spouse was listed as your agent or representative and you no longer wish them to be. If you want them to continue to be your proxy or if the original document named someone other than your spouse as the proxy, you can leave the document as is.