When going through a divorce, a spouse has enough legal problems to address that he/she may not want to also consider reviewing and updating his/her estate plan as well. However, because of the divorce, it is all the more important to review your estate plan at this time. Why? Because it is not uncommon for your soon-to-be ex-spouse to be the beneficiary of your estate, your health care agent under a Health Care Proxy, and/or your Attorney in Fact under a Power of Attorney.
There are 3 typical documents that are included in almost all estate plans: 1) Last Will and Testament; 2) Health Care Proxy; and 3) Power of Attorney. The Last Will and Testament outlines how your property and assets will be disposed of after you die. It is not uncommon for the spouse to be the primary or sole beneficiary. If you no longer want your soon-to-be ex-spouse a beneficiary of your estate, it is important to update your Last Will and Testament to remove him/her from your Will.
Similarly, a Health Care Proxy nominates someone who can make medical decisions on your behalf when you are unable to do so (such as when you are unconscious or in a coma). It is not uncommon for this person to be your spouse. However, once you file for a divorce, unless you want your soon-to-be ex-spouse making these medical decisions for you, you will want to update your Health Care Proxy after filing for divorce. Otherwise, your soon-to-be ex-spouse will still have the authority to make medical decisions for you, even though there is a divorce pending.
Likewise, a Power of Attorney permits someone to conduct your personal business affairs on your behalf (e.g. manage your investments, file taxes, do your banking, etc.). Like a Health Care Proxy, it is not uncommon for this person to be your spouse, and also like a Health Care proxy, the Power of Attorney is not invalidated by a divorce filing. Thus, if you do not want your soon-to-be ex-spouse managing your personal business affairs, you will need to update your Power of Attorney to nominate another person (other than your spouse) to fill this role.
Another thing to consider is beneficiary designations on assets such as life insurance, retirement accounts, and other assets. If your soon-to-be ex-spouse is the beneficiary on any of these assets, you will want to consider updating the beneficiary on assets such as these. However, unlike your Last Will and Testament, Power of Attorney, and Health Care Proxy, you may not be permitted to change the beneficiary on these assets while the divorce is pending. In Massachusetts there is an automatic financial restraining order, Supplemental Probate and Family Court Rule 411, where the beneficiary designation certain assets, such as life insurance, cannot be changed while a divorce is pending. Therefore, you should consult with your attorney before changing the beneficiary on any of these assets if your divorce is still pending.
Thus, although you may already be very busy and overwhelmed with your divorce, it is equally as important to review your estate plan after you have filed for divorce.
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