What should you do regarding your estate plan during your divorce here in Cincinnati? In most cases, Nothing! At least not DURING the divorce, though it is wise to let your estate planning attorney know what is happening and perhaps set up a review session to identify those areas that will likely need to be modified pre- and post-divorce. But, unless you are 100% certain how things will go regarding minor children, assets, beneficiaries, etc. (sometimes there are if trusts or other issues are involved that lead to more certainty) I usually advise clients to wait to update or create their estate plan until all decisions are legally final. Again, this applies to both those updating an existing plan or creating a new one.
While the inclination may be to want to take a break from “all things legal” once the divorce is finalized, I contend that it is the perfect time to turn to your estate planning attorney in Cincinnati for help. No one knows what our future holds, and you probably do not want your “pre-divorce” decisions carried out “post-divorce” if something happens to you. So, when looking at your estate plan during the divorce, you can start thinking about making changes such as:
Power of Attorney Documents
Most estate plans include power of attorney documents regarding your medical care and financial affairs. If, for example, your soon-to-be former spouse was the designated individual on your medical power of attorney document, do you still want that person making medical decisions for you if you are unable to make them for yourself? Maybe, maybe not. The same goes for the financial power of attorney; should your ex-spouse still have access to your accounts? Probably not.
Guardianship of the Children
Estate planning during divorce takes on a whole new perspective if you have young children. If you are in the throes of the divorce, you and your soon-to-be ex-spouse are likely working through who gets the kids for this holiday or that vacation. And maybe the assumption is that if something happens to one of you, the other is granted full guardianship, just like always. But we can all think of situations where an ex should not be granted full guardianship due to issues like drug or alcohol addiction – perhaps the very reason for the divorce. So you need to set up or modify your estate plan to ensure your children’s safety and care after you’re gone. By the way, minor children cannot inherit assets directly, which, pre-divorce, probably meant your spouse would have been named guardian of the estate, with control over the children’s assets until they reach legal age. Maybe you don’t want your ex having that control now and prefer someone else – just something to consider.
Changing Designated Beneficiaries
When making changes to your estate plan during a divorce (despite my caution to wait), you should know that when it comes to changing beneficiary designations, each state has its own unique rules about timing, including here in Ohio. Some accounts or policies can and should be changed prior to the divorce being finalized. Others, definitely not. This is when working with an estate planning attorney is important so you don’t make mistakes that could have major consequences.
I can’t emphasize enough that updating or creating an estate plan during or after a divorce is not something you should tackle on your own. An experienced estate planning attorney in Cincinnati can help guide you based on your unique situation to ensure all the bases are covered. If you already have a plan, make sure to review it with an estate planning attorney related to the power of attorney documents, guardianship of the children, and updating beneficiaries as needed. Or, if you didn’t have an estate plan before, this is an excellent time, now that you are on your own, to begin. Even if there are no children, you want to have legal instruments in place in the event you are in an accident and can’t make medical or financial decisions for yourself.
Updating or creating your estate plan related to a significant life event, such as a divorce, is important. Really important. I’d be honored to work with you to ensure your hard-earned assets and heirs are protected. Feel free to learn more at my website https://davidlefton.com/services/estate-planning-basics/ or call me at 513-399-7526.