After a marriage ends, there are many changes that come about. You will have already dealt with asset division and perhaps tackled name changes, vehicle registrations, insurance changes, and other technical issues. However, there are plenty of steps you may still need to take as part of estate planning.
First, it is important to review any non-probate assets and policies that do not go through a will. For example, if your ex is still listed on your life insurance policy, you need to change that. Then, it is important to review your will. Divorce usually takes your ex off of your will, but there are technical reasons this might not happen. This is especially important when children are involved, and you may need to make new decisions about guardianship and support.
Call our Nevada estate planning lawyers at Flake & Flake today to discuss estate planning after a divorce: (702) 829-5731.
Changing Non-Probate Assets
Estate planning is much more than just your will. A will governs any assets and property that pass through “probate – the court process where your personal representative is appointed and empowered to gather up and distribute your estate. Any other property has its own rules, including these assets that may need post-divorce changes:
Life Insurance and Other Policies
If your life insurance policy, retirement policy, or other policy still lists your ex, you will probably want that changed. You might want your ex to get the money so they can use it for your children, but you can put official restrictions on this by listing a trust as the policy beneficiary with your ex as trustee.
For example, listing your children on the policy, but putting the life insurance money in trust (with your former spouse – or another person – as trustee) can give your children the benefit of the money without having to manage it themselves. It can also restrict how the trustee can use the money.
Deeds and Other Ownership Documents
Dividing up ownership of houses and other property is often a core part of asset division during a divorce, but it might not change things automatically. The parties still need to go change the deed/title to their house and other property.
If the deed still lists you and your ex as joint owners, it may give them rights to the property that would be complex for your heirs to challenge after your death.
Accounts
The same is true of accounts: if you have joint accounts with your ex’s name still on them, your ex might get the money after you pass. This would stop the accounts from even going through your will, and it would be harder for your heirs to get access.
Trusts
If you have already established a living trust or have rules set in place for trusts to be funded upon your death, you may want to adjust them to reflect the change in your family structure.
This might mean adding your ex as trustee (e.g., if your shared children are listed as beneficiaries) or changing the trustee from someone on your ex’s side of the family to someone on your side.
Do You Need to Change Your Will After a Divorce?
Yes. There are changes that will take place automatically because of the divorce, but you should review them and update the will with help from an estate planning lawyer.
You should update your will after any serious life changes, such as a death in the family, marriage, divorce, new children, remarriage, etc.
What Changes in a Will Automatically Because of Divorce?
Depending on the original language used and the specific laws that apply, a will might be set up to account for some changes automatically. However, they might not work how you expect or want.
Bequests to “My Wife” or “My Husband”
Wills are often written to give things to “my wife” or “my husband.” If no one fits that title because you are now divorced, then that entire bequest will typically be stricken automatically.
If no alternate heir is listed, the will doesn’t list anyone to give it to. That means we need to check the intestacy law to see who the new heirs are.
This should list your children, parents, or a sibling to take the estate instead of your ex, but that might not be what you want.
Spouse Listed By Name
When will’s say “my husband/wife,” and then includes their name, this is often treated the same as if you just said “my husband/wife” with no name. The assumption is that they were only listed in the will because they were your spouse, and it strikes them from the will.
If you just listed them by name, then the court might keep them in the will. This can be interpreted as proof that you meant to give your estate to that person, regardless of your marriage. This is a reasonable claim when…
- They were listed in your will before you ever got married in the first place.
- You went a long time after the divorce and kept them in place on your will.
- You changed your will after the divorce and left your ex included by name.
Your Spouse’s Family
If there are bequests in your will to your spouse’s family members, they might be stricken from the will automatically as well. The presumption here is that they are only in the will because they are related to your spouse.
Unless there is some continuing relationship after the divorce (e.g., if your former brother-in-law is your business partner or best friend), then they might be stricken, too. In any case, clearly updating your will is the best course of action.
Intestacy Rules After a Divorce
If your spouse is stricken from your will upon divorce, then you may be left with an ineffective will that does not actually list any heirs (at least for that portion of the estate). When that happens, we look to the intestacy statute to see who your estate goes to.
This usually lists your children first, if you have any, then other family in order of closeness (parents, siblings, nieces/nephews, etc.). You can override this default by updating your will.
Covering Children in a Will After a Divorce
Wills often say who you want to take guardianship of your children or who will support them after your divorce. This might assume your then-spouse keeps custody if you pass, and that these portions only take effect if you both pass away.
Your will might need to be updated, especially if you have full custody and do not want your ex to get guardianship for whatever reason.
Guardianship
Your will might have listed someone on your ex’s side to take guardianship if you pass, which you may want to change.
Custody may also play a part in your decision. If you share custody after the divorce, you may want your children’s other parent to take full custody after your death. If you have sole custody, you may want your parents or sibling to take guardianship instead of your ex.
Support
The same kinds of issues arise with support. Before the divorce, your will might have assumed your spouse will live and only have backup plans in place in case you both passed.
You may want to put money in trust with someone on your side of the family instead of whoever was listed before. You may even affirmatively want to list your ex as trustee for your children’s money if they will take over full custody when you pass, so that you can restrict how they spend the money.
Call Our Estate Planning Lawyers in Nevada Today
Call (702) 829-5731 for a free case evaluation with the Las Vegas, NV estate planning lawyers at Flake & Flake.
