If you already have an estate plan – even just a will – in place when you decide to divorce, you’re ahead of most people. While you may not want to deal with more legal matters than you already are, it’s important to know what changes you’ll need to make to your estate plan and the appropriate timing of them.
It’s smart to get some estate planning guidance early on to ensure that your desired changes aren’t made too early (or late) in the divorce process and that they reflect your wishes after this significant life change. Of course, each situation is unique. Here we’ll look at two common questions.
When can I disinherit my soon-to-be ex?
The short answer is that you can’t do that until the divorce is final unless you have a prenuptial or postnuptial agreement that says otherwise. You could remove them as a beneficiary of any of your estate. However, under Virginia law, if you were to die while you were still legally married, they could still claim their “elective share” of your estate.
Note that once your divorce is final, the law “revokes any disposition or appointment of property made by the will to the former spouse.” That means if you were to pass away before removing your spouse as a beneficiary, the court would treat the matter the same as if they had predeceased you and move to any secondary beneficiary listed.
When can my spouse be removed from fiduciary appointments in my estate plan?
Further, if when the divorce is final, if your spouse is listed as the “executor, trustee, conservator, or guardian,” that appointment is revoked. You don’t have to wait until after the divorce to change most appointments, as they aren’t required to be given to a spouse. For example, you may not want your soon-to-be ex to have power of attorney (POA) over your health care or be the executor of your estate. On the flip side, if your divorce is amicable, and you still think your spouse is the best person to have these responsibilities, you’ll need to reaffirm that with your divorce in your estate plan.
Further, the terms of your divorce may require specific provisions in your estate plan. That’s why it’s best to review your final divorce decree with an estate planning professional to help ensure that you’re fulfilling those requirements.