If you and your spouse are headed for divorce and your relationship has devolved into conflict, distrust and perhaps even some hate, one of your first instincts may be to remove him or her entirely from all of your estate planning documents. You don’t want your estranged spouse having any say over your finances and certainly not over your medical care should you become incapacitated. You may not want your soon-to-be ex to get a penny of your money if you die.
However, you likely can’t erase his or her name from every page of your estate planning documents — at least not yet. It’s essential to talk with your estate planning attorney and your divorce attorney.
There are some changes you can and should make before the divorce is final. Others you can make once the divorce agreement signed. Others will be prohibited under the terms of your divorce or perhaps your prenuptial or postnuptial agreement.
You can modify your health care proxy to put someone else in charge of seeing that the wishes you’ve outlined there are carried out. The same is true for any power of attorney authority your spouse has over your estate and financial assets. In fact, if you don’t want your soon-to-be ex to have any of those authorities, it’s essential to make the changes as soon as possible.
Some changes you may not legally be able to make, at least until the divorce is final. You can’t completely disinherit a person who is still legally your spouse. You likely can’t remove him or her as your children’s legal guardian if you should die.
You can further reevaluate your estate plan once the divorce is final. However, keep in mind that if you have a prenuptial or postnuptial agreement in place, any changes that you make to your will, trust or other documents cannot contradict the terms of those agreements. They also can’t violate any terms of your divorce.
If you properly execute the changes you’re able to make to your estate plan before and after your divorce, you can have peace of mind and prevent unnecessary legal battles with your spouse.