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Estate Planning When Going Through Separation or Divorce

Updated: Nov 4, 2022

If you came from my previous post on estate planning for blended families, one of the first things I tried to emphasize is the fact that not all marriages work out–and that is completely okay.

Today, let us go deeper into these realities, particularly, separation and divorce, and how estate planning plays a very important role in going through these episodes.

First things first–I sincerely understand how difficult going through separation or divorce is. It is difficult mentally and emotionally (and financially, even), most especially because of all the changes and adjustments, and the fact that children, if any, are going to be seriously affected by the decisions you and your spouse are going to make.

While separation and divorce are two completely different concepts in the legal sense (that is, the former does not cut off marriage ties unlike divorce), the reality is that these two, although unalike, are going to be equally challenging to live through.

Amid these challenges, I hope spouses find the energy and the time to also address their estate plan.

Here’s why.

There might be a need to update each one’s living will, power of attorney, and/or trust.

Especially for couples who have previously worked on these tools during the marriage, it's best to revisit them to make the necessary changes, so that you do not have to deal with this later on. It is highly likely that you named each other in these estate planning instruments, and most people (if not all) wouldn’t want to retain this arrangement as they walk away from the marriage.

Note, though, that not all instruments can be altered, so better ask the help of an estate planning lawyer for this!

For those who did not make an estate plan as a couple, well, I highly suggest you talk about this, too. As I have briefly discussed earlier, not all kinds of “separation” actually terminate the marriage. If you and your spouse decide to leave the courts out of it (totally understandable—divorce proceedings cost lots!), the effect is that you are technically still married in the eyes of the law.

You can, however, make an estate plan and include these essential tools to reflect the set-up the both of you eventually agree on. For example, you can designate a sibling (or a close friend, perhaps?) in your living will, power of attorney, or such other estate planning tools, so that these people will be in charge instead of your husband or wife, who, again, is technically still your spouse despite the separation.

You might have to reconsider what to leave your spouse.

Most couples who decide to separate also decide to leave each other out in the distribution of their estate. If you already have a will prepared prior to the separation, do not strike your spouse out just yet. In the legal field, this is called disinheriting an heir, and there are a ton of things to consider before you can actually do this. What do your state laws say? How much of your money and other assets can you deny of your spouse? Can you actually disinherit him or her completely? What about the properties that you and your spouse acquired together? Who gets what?

Pretty complicated, huh? Then again–it might be complicated now, but it certainly will get even more complicated if you decide to delay and just deal with this later on.

You don’t have to do this alone, though! Like I always tell clients, leave the complicated stuff to the expert. So that spouses can focus on their recovery (and their children’s!) from the separation/divorce, estate planning lawyers are here to handle matters related to property, trusts, wills–anything having to do with estate plans. (Want to get started? Contact me through the link below this post!)

Divorce finalized? Finalize your plan, too!

If, after several court proceedings and submissions, you and your spouse (well, ex-spouse, if the divorce decree has already been issued) are now legally divorced, do not forget to revisit your estate plan!

Even if you did already revisit it while the divorce process was ongoing, there is a need to do that again after the court grants your petition. Make sure that your plan reflects your court-approved set-up, and while you’re at it, go ahead and update your beneficiary designations, too!

To stress what I have been emphasizing throughout today’s blog, updating your estate plan avoids future disputes and litigation. Fix what you can already fix NOW.

Separation or divorce is definitely not easy, and I am here to help you out in an aspect that most spouses often overlook. This is not to say that we’d be limited to talking about just estate planning, of course! Again, it’s not easy–I’m here to listen.

To start, head on to this link for a virtual consultation. This is going to be casual, no pressure, and absolutely free!

You can also choose to contact me by clicking this link.

I look forward to hearing from you!


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