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Do I need to wait for my divorce to be final to create a new estate plan?

Many people mistakenly believe that you cannot change your estate plan during the legal proceedings. Both separation and divorce require action to update your estate planning. The need to revise your estate planning starts as the relationship ends, not when the marriage is formally ended. Separated spouses do not have to notify the other spouse of changes to their estate planning. Developing a new plan is especially important in these circumstances since spouses usually name each other as both their agent and beneficiary.

What needs to be reviewed, updated or replaced?

Your entire estate plan (legal and financial) needs to be reviewed, updated or replaced.

  • Will
  • Revocable trust
  • Health care power of attorney
  • Financial power of attorney
  • Advance directive
  • Deeds
  • Vehicle and other asset titles
  • Life insurance beneficiaries
  • Retirement account beneficiaries
  • Annuity beneficiaries
  • Payable-on-death account beneficiaries
  • Transfer-on-death account beneficiaries
  • Online account usernames, passwords and contact emails
Signing an estate plan document

How do I start the process?

Estate planning after divorce begins with finding a new estate planning lawyer. The attorney who assisted you and your former spouse with the estate plan created while you were married cannot ethically assist either spouse individually. In many states, the attorney has an obligation to notify their client, your former spouse, of any changes you make to your estate plan.

After the end of your marriage, a new will or living trust is needed to distribute your assets the way you want at your passing. As mentioned above, it is neither necessary nor advisable to wait until the marriage is legally dissolved to sign a new plan providing how you want your assets managed and distributed. Divorce decrees and property settlement agreements provide which spouse gets which asset. But, the decree alone is not sufficient and the assets actually need to be retitled. For example, for real estate, a new deed needs to be recorded. For a car, boat or other vehicle, a new title needs to be issued. The best way to avoid disputes over who owns what is to carefully and fully retitle the formerly joint assets as outlined in the divorce decree.

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