Divorce represents one of the occasions in a person’s life when they should give some consideration to life (or estate) planning documents. Admittedly, it may not be your first thought.
But, after one of you files for divorce, do you want your spouse to be the one to make decisions about your medical treatment, or lack of same, if something should happen to you? (Recall that health care surrogate / health care proxy / medical power of attorney you executed years ago.)
And if you should become permanently or temporarily disabled after one of you files for divorce, do you want your spouse to be able to conduct all manner of financial transactions, even with your separate assets? (Recall that durable general power of attorney you executed years ago.)
And, heaven forbid, you die before your divorce is final (which may put an end to your divorce) or right afterwards, do you still want to leave all (or any) of your assets to your current spouse? (Recall that will you executed years ago.)
All of the above should be reviewed and updated as soon as one of you files. But that is far from all.
Although many, many people do not realize it, their will does not control how all of their property passes. Much of people’s property today is non-probate property, which passes in accordance with how the asset is titled or a beneficiary form. Their will has no bearing on it.
Some examples include insurance policies, IRAs, jointly titled assets and trusts.
If your spouse is in debt up to his eyeballs, do you really want your life insurance payable to him or her, if your intention is to provide for your kids? (Recall that beneficiary designation form you executed years ago.)
401(k)s seem to fit into the garden-variety non-probate category of assets too, but be forewarned that federal law kicks in to protect a surviving spouse – unless special paperwork is executed. Although your spouse probably won’t agree to it during the divorce, that paperwork can be made part of a settlement.
And then there are state elective share statutes, also designed to protect a surviving spouse no matter what the deceased spouse’s will says. But again, there is special paperwork that can take your estate out of your spouse’s reach, but your spouse probably won’t agree during the divorce.
So, in appropriate circumstances, when possible, some pre-divorce planning may be desirable.
The above are just a few of the life (or estate) planning matters you should consider when contemplating divorce.