Since most couples’ estate plans provide that their property go to their spouse and they each choose their spouse to be their legal representative in the case of death, disability, or inability to make health care decisions, when your marriage is in trouble it’s a good time to consider updating your estate plan.
Here are the areas that require attention:
Wills
Once your divorce is final, Massachusetts’ law revokes your will if your ex-spouse is in it. But keep in mind that your will doesn’t get revoked just because you file for divorce. During the divorce process, you remain legally married to your spouse. Would you want your soon-to-be ex-spouse to inherit from your will the way you have it set up? When you’ve determined that your marriage is over, you should review your will and update it based on how you want your assets to be distributed, who you want your executor to be, who you want as trustees of your trust, and who you desire to be the guardians for your minor children if you and your spouse pass away.
Health Care Proxy
Once your divorce is final, your health care proxy is legally revoked if your ex-spouse was named as your agent in the document. But during the divorce process, your health care proxy is still valid. Would you want your spouse to be the person who makes decisions about your health care if you become unable to make those decisions yourself?
Durable Power of Attorney
A durable power of attorney allows you to name someone you trust to make legal and financial decisions for you in case you become incapacitated. The goal is to ensure that your finances will be managed properly and for your benefit. The person you designate can do everything you could do for yourself, such as check writing, collecting rents, repairing your home, selling your house or car, or trading stocks or other investments. During a long period of disability, you might not feel comfortable with your soon-to-be ex-spouse managing your financial and legal affairs.
Retirement Plans, Life Insurance, and Other Investment Assets
In Massachusetts, once you’ve started a legal divorce proceeding, there is a restraining order that prohibits any changes in beneficiaries of life insurance or pension or retirement plans. Once your divorce is final, you can update your designation of beneficiaries, keeping in mind any agreements you made in your divorce decree. There are assets that aren’t restricted once you’ve filed for divorce, such as private annuities, IRAs, Employee Stock ownership plans, U.S. Savings Bonds, and you should look into which ones you can change, or whether they require your spouse’s consent.
You should also do a new HIPAA form, removing the ex-spouse as a person having access to protected health information.
Going through a divorce can be devastating both emotionally and financially. If you’re going through a divorce or have been divorced, we can help you easily update your estate plan. Just call us at (619) 765-9307 or send an email to mkarr@maheritagelawcenter.com.
