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If you wrote a will, trust, or powers of attorney when you were married, decisions were probably made regarding allocating assets, healthcare, and more. Once you are divorced, you may need to alter your estate plan.
Divorce and post-divorce are an important time to review your existing estate plan, or to create an estate plan if you have not yet made one. Failure to properly plan at this important junction can have many severe and unintended consequences to your estate and to the people you love. Learn more about divorce and estate plans in this article, and speak to our DuPage County estate planning and divorce attorneys at SBK Law Group if you have questions.
Most people have a will, trust, or beneficiary designations that provide that a large amount or all of their assets will be left to their spouse. In some states, that provision may stand even after divorce. However, in Illinois, a divorce revokes all testamentary gifts made to your ex-spouse.
There is more to consider though to ensure that your estate plan post-divorce reflects your current and intended wishes. Important considerations include: what obligations in your divorce must be incorporated into your estate plan, such as life insurance securing maintenance, or for the benefit of minor children. You may have named people to act as successor trustees or guardians of minor children that, post-divorce, no longer reflect your wishes.
Or, in light of the divorce, you may want to change who would manage a minor child’s inheritance and the age at which the child would inherit. For those without children, if you previously named your spouse as your only beneficiary, you should consider updating your plans to ensure that the people or causes that are most important to you benefit from your estate, otherwise, the beneficiary of your estate may be determined by Illinois law.
After a divorce it’s a good idea to review your last will and testament and beneficiary designations on bank accounts, investment accounts, and the like. Very often these will require updating. While state law provides that your ex will not inherit or serve as executor under a will drafted before the divorce, you are likely to want to name new beneficiaries and a new executor succession plan. Its important to work with an attorney, especially when you have minor children involved. Occasionally, a person wants to provide for their ex even after the divorce. Again, consultation with an experienced estate planning attorney is important to make sure that your intent is properly expressed to carry out your wishes under Illinois law.
A revocable living trust is a common estate planning vehicle and one that needs to be reviewed after a divorce. In a revocable living trust, the property holder confers the property to the trustee to hold it for the beneficiary while still keeping the right to take the asset back. It is common for a spouse to be a beneficiary or trustee of such a trust. Some spouses even have a joint trust or are co-trustees of each other’s trusts.
Proper attention must be paid to updating such an estate plan in the face of a dissolution of marriage, sometimes even before a divorce, such as when there is a significant breakdown in trust towards a trustee spouse. If your ex-spouse is a successor trustee or contingent beneficiary, the necessary changes are usually easy to make, but should not be delayed. However, complex estate plans, such as irrevocable trusts, can make the division of property much more complicated and require the assistance of an attorney.
Be aware that Employee Retirement Income Security Act (ERISA) provisions apply to 401(k) and pension accounts. Thus, no matter what, all funds in those accounts have to be turned over to the beneficiary you named, and there can be no legal challenges. If you want to avoid your ex-spouse receiving those proceeds, your attorney can guide you on how to make a beneficiary change. When making those changes, it’s important to make sure that you are acting consistent with any obligations under the divorce decree and that you are working with an attorney if your intended beneficiaries are minor children.
Many couples have IRAs and life insurance policies where they name their partner as the beneficiary. Failure to keep beneficiary designations accurate and up to date can lead to a variety of legal implications and can complicate or frustrate passing to the person or persons that you intended, so if you divorce, you should go through the beneficiary change process for each account or fund. Again, attorney assistance is recommended when you have obligations under the divorce or where minor children are involved.
With proper estate planning, you can avoid uncertainty for your family after you pass on. But if there is a divorce, how will that affect your estate plan? SBK Law Group has decades of experience in estate planning and divorce law and can advise you on ensuring your estate plan is in order during and after a divorce. Please contact our DuPage County estate planning law office today at (630) 427-4407 for a complimentary consultation.
