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Divorce can impact many aspects of life, from finances to personal relationships. One area that’s often overlooked, however, is the need to update your will and other estate planning documents after a divorce. It’s essential to ensure that your wishes reflect your new circumstances, protecting both your assets and your family’s future. Failing to update your will after a divorce can lead to unintended consequences, including allowing an ex-spouse to inherit property or control assets in ways you no longer intend. In Illinois, specific laws and statutes come into play regarding wills, inheritance, and the distribution of assets after a divorce. We’ll walk through the reasons why it’s vital to review and update your will promptly and provide a step-by-step overview of the legal considerations that make this process crucial.
When a marriage ends, the provisions of a previously created will may no longer align with your current wishes or life circumstances. Illinois law has specific provisions that impact wills upon divorce. For instance, Illinois law under 755 ILCS 5/4-7(b) automatically revokes any language in a will that provides for an ex-spouse; however, this law doesn’t apply to all assets or to any new relationships that may have formed since the divorce. The law also does not have any bearing on provisions that you may have made regarding friends or family of your former spouse. Simply relying on the law’s default revocation might not be enough to address all aspects of your estate plan. By revising your will, you maintain control and clarity over your estate, ensuring your assets are distributed according to your current preferences and that your loved ones are protected.
Revoke Previous Beneficiary Designations – Divorce does not automatically change all beneficiary designations in financial accounts, or retirement plans. Illinois law, particularly 750 ILCS 5/503 (b-5)(2), does revoke provisions life insurance policy beneficiary designations as to an ex-spouse provided that the beneficiary designation was made before the divorce decree and provided that the judgment for dissolution of marriage does not expressly provide otherwise, but not all beneficiary designations to an ex-spouse are necessarily and automatically extinguished by a divorce. So, it’s essential to update your beneficiary designations across all accounts. By designating new beneficiaries, you can avoid a variety of disputes, delays, or unintended inheritances.
Appoint a New Executor or Trustee – In many cases, spouses name each other as the executor or trustee of their estate. After a divorce, it’s often beneficial to select a different individual to carry out these duties. If your ex-spouse remains listed as the executor on a will signed before the divorce, then generally your divorce decree will specify that your ex waives the right to serve as your executor. Without a new will providing updated clear and legally binding instructions from you, complications can easily arise, especially if there’s family discord. You might consider appointing a trusted family member or friend as your executor to ensure that your estate is managed according to your wishes.
Update Guardianship Provisions for Minor Children – If you have minor children, addressing guardianship is a priority in estate planning. While Illinois law generally grants parental rights to both parents, it’s essential to specify your preferences regarding guardianship, especially in the event that both parents pass away. Updating these provisions can provide guidance and stability for your children during a difficult time.
Review and Update Trusts – If your estate plan includes any trusts, it’s critical to update them to reflect changes in your family structure. An ex-spouse may still be named as a successor trustee or a primary beneficiary under a previous arrangement, which may no longer be appropriate. Your successor trustee may no longer reflect your current relationships and preferences.
While Illinois law does provide that unless the trust instrument expressly provides otherwise, with respect to revocable trusts, dissolution of the marriage in Illinois revokes every portion of a settlor’s revocable trust as it relates to the ex-spouse. See 760 ILCS 3/605(b).
Despite this operation of law, without updates, your trust estate may be managed and inherited by a member of your ex-spouse’s family or others with whom you may no longer be close. If your trust is a revocable trust, it is simple to work with an attorney to amend or update the trust. If a trust is irrevocable, often there are still options available to modify the trust.
Reconsider Health Care and Financial Powers of Attorney – Many individuals designate their spouse as the agent in their powers of attorney, granting them authority over healthcare and financial decisions. After a divorce, most individuals prefer to name a different person to handle these responsibilities. Reviewing and revising these documents ensures that you have the right individuals in place to make decisions on your behalf if necessary.
In Illinois, certain provisions of a will are automatically revoked upon divorce under 755 ILCS 5/4-7(b). Specifically, any language in a will that designates an ex-spouse as a beneficiary is generally nullified, as are any powers or responsibilities granted to them. However, there are different rules that apply to other estate planning tools like trusts, payable-on-death accounts, or beneficiary designations on retirement accounts. As such, reviewing and updating all aspects of your estate plan is essential to avoid any unintended consequences.
Consult an Experienced Attorney – An estate planning attorney familiar with Illinois divorce laws can guide you through the process and help address all areas that need attention. We ensure your documents reflect current legal standards and minimize potential legal conflicts.
Conduct a Full Inventory of Assets and Beneficiaries – Reviewing all assets, accounts, and insurance policies helps ensure that each is accounted for in your updated estate plan. List beneficiaries for each asset and decide if any accounts should be placed in trust for minor children.
Establish Clear Instructions for Child Guardianship – Although Illinois courts prioritize parental rights, you may still wish to clarify your preferences regarding guardianship, which can help guide the court’s decisions in unforeseen circumstances.
Update Beneficiary Forms Directly with Financial Institutions – In addition to revising your will, it’s essential to contact your bank, insurance provider, and retirement plan administrator to update beneficiary forms. These designations are often binding and may take precedence over will instructions.
Secure Digital Copies and Inform Key Parties of Changes – Once your revised estate plan is complete, store digital and physical copies securely and inform close family members or your executor of the updates to avoid confusion.
Many individuals assume that a divorce nullifies all estate planning arrangements involving an ex-spouse. While there are some protections that exist under Illinois law, there are significant gaps that can leave individuals vulnerable if they don’t actively update their estate plans.
If you don’t update your will, Illinois law may automatically revoke provisions for your ex-spouse within the will itself, but this revocation doesn’t extend to all assets, such as payable-on-death accounts or retirement plans. This can lead to unintended inheritances, where an ex-spouse might still receive certain assets if beneficiary designations aren’t updated. We recommend revisiting your estate plan entirely to ensure that every aspect aligns with your wishes and reflects your current family dynamics.
In Illinois, unless you update the pre-divorce beneficiary designation post-divorce, your ex-spouse would still be the beneficiary of record on any life insurance policy where you have previously named their beneficiary, but they would not be legally entitled to the life insurance policy proceeds. Illinois is an automatic revocation state. This means that an ex-spouse will not be legally entitled as a beneficiary of your life insurance policy unless (A) the judgment designates the insured former spouse as the beneficiary; (B) the insured redesignates the former spouse as the beneficiary after entry of the judgment; or (C) the former spouse is designated to receive the proceeds in trust for, or on behalf of, or for the benefit of a child or dependent of either former spouse.
750 ILCS 5/503(b-5)(2). It’s highly recommended that you update your beneficiary designations. Because laypersons are often not familiar with these laws, if you pass away without having updated your beneficiary designations, these situations can quickly become expensive and time-consuming to sort out after one’s death. The ultimate result may also not turn out the way you may have expected or intended. Contact your insurance company to update your beneficiary designation to avoid such complications.
Illinois law generally revokes an ex-spouse’s appointment as the executor upon divorce. However, unless explicitly changed, this could create confusion or potential disputes if not properly addressed in the will. We advise formally revising your estate plan to name a new executor and avoid any ambiguity that might complicate probate.
Yes, even if your children are now adults, updating your will ensures they are designated as beneficiaries and can receive assets without needing guardianship provisions. Revising your estate plan allows you to allocate assets more directly, providing support in ways that are most appropriate for their current stage in life.
Trusts are generally treated as separate from your will. To remove an ex-spouse from a trust, you would need to modify the trust directly. We recommend reviewing all trusts alongside your will to ensure your estate plan remains consistent and clear across all documents.
At SBK Law Group, we understand that life changes after divorce, and so should your estate plan. Protecting your family and assets after such a significant event is essential to ensuring your wishes are honored. Our dedicated Downers Grove divorce lawyers are here to guide you through the process, addressing the legal details that come with revising your will and updating your estate plan.
If you’ve recently gone through a divorce and want to secure your family’s future, we’re here to help. Contact our Downers Grove divorce lawyer at SBK Law Group at 630-427-4407 to schedule a consultation at our Downers Grove office. We proudly serve clients in Downers Grove and throughout Chicago, Illinois, from our Downers Grove location.
