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After the dust settles from the divorce proceeding, the first thing that you should consider doing is executing a new set of estate planning documents.
When married, most people name their spouse as beneficiary of their estate, the executor under their will, their agent under a health care proxy and their agent under a power of attorney. Obviously, with the marriage ending, you’re going to want to update these documents to address your new circumstances. While the execution of a separation agreement or entry of a judgment of divorce cuts off inheritance rights for former spouses, it is always better to cross “t’s” and dot “i’s” and execute new documents.
Drafting a new will ensures that your assets pass to those people you now wish them to go
to, and updates the named executor (the person who will handle administration of your estate). It also allows for the formation of trusts to hold assets for minor children and can specifically name who certain items of personal property will go to (family heirlooms, jewelry, etc.).
Another important document to update, which you can actually update during the pendency of a divorce or separation, is your health care proxy. This is the person who makes health care decisions for you in the event that you cannot make them for yourself. Obviously, while a marriage is in the process of being dissolved, you will likely want to change the agent under this document from your soon-to-be former spouse to someone else. Otherwise, your estranged spouse has the ability to make health care decisions for you if no agreement or judgment has been signed.
Finally, you can also update your power of attorney during the pendency of a matrimonial proceeding. The agent under a power of attorney has the ability to access your financial information and accounts and handle your financial affairs, even when you still have the capacity to do so. Clearly, you do not want an estranged spouse to have the ability to do this.
As you can tell, post-divorce estate planning is fraught with complications, pitfalls and considerations, which the layperson may be unaware. Seeing an experienced estate planning attorney will ensure that you and your ex-spouse obtain the most beneficial arrangement possible for distribution of your assets and estate.