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Don’t wait until your divorce to review your will

Divorce often means change. You may experience a change in your finances, a change of residence, perhaps even a name change. Your routine will be different, and you may also have a new social set in which you travel. There are many aspects of your life that a divorce will touch, and your estate plan will certainly be one of them.

If you are in the process of a divorce, delaying a review of your estate plan may result in unintended consequences. Even if you are only weeks or days from the signing of your final decree, you are legally married until that time. Your soon-to-be ex-spouse may still have the legal right to make decisions about your estate and your welfare.

Divorce and your estate plan

In Texas, as in many other states, your divorce nullifies any provisions related to your spouse in your will. Your will is not void, but the law interprets it as if your spouse had died before you. This is provided that your divorce decree is final. During the time your divorce is still pending, the will stands, and the court may support your spouse’s legal claim against any disputes.

What may concern you more than the provisions of your will is the power of attorney designation you have given your spouse. If your marriage is deteriorating and divorce is inevitable, you may not wish to wait to amend your power of attorney. While the law revokes your spouse’s role as agent in your power of attorney once you file for divorce, there may be other appointments your spouse retains that may not be in your best interests.

Trusts and other benefits

An irrevocable trust stands regardless of your change in marital status unless the trust includes a caveat for divorce. Provisions for your spouse in your revocable trust, however, likely follow the pattern of your will. Again, your spouse’s inclusion in these estate planning tools remains valid until a judge signs the final divorce decree. If you should pass away prior to that, those to whom you intended to leave your estate may have to battle with your spouse in court.

Technically, the law revokes your spouse’s designation on your life insurance, pension, annuity or other plan when you divorce. However, if you fail to change beneficiary designations, your spouse may claim those benefits before your other heirs can. The institutions will not be liable, and your spouse can easily spend or hide the money, making it difficult for your heirs to recover it.

To save your family the struggle and expense of battling your future ex for their inheritance, it is best not to put off revising your estate plan until the divorce is final.