Estate Planning Considerations During or After Divorce

When a couple decides to divorce, their focus is on dividing assets, custody arrangements, and financial support, such as alimony and child support. Many will spend months, even years, arguing over assets and then forget to protect them by updating their estate plan.

As our firm handles both family and estate planning matters, we specifically work to make sure our clients realize that separation (and sometimes even divorce) do not extinguish all spousal rights under probate law. Please consider the following if you are going through divorce or if your divorce was recently finalized:

Have You Revised Your Last Will & Testament?

Under South Carolina Law, your spouse is entitled to 50% of your estate if you do not have a will (100% if you have no children). Many of our clients are surprised to learn that this law applies even if you are separated with an intent to divorce. There are only a handful of exceptions to this rule:

  • Prenuptial or postnuptial agreement which waives a spouse’s rights in the estate.
  • A court-approved separation agreement that waives this right.
  • A final order of divorce
  • A last will and testament which disinherits the spouse (although they may still make an elective share claim for 1/3 of the estate).

Do You Need to Revoke Your Power of Attorney?

Many spouses name one another as their health care and/or general durable power of attorney. If you have these documents in place and are in the midst of or have completed your divorce, it’s time to revoke and revise them. Most divorcing spouses do not want their soon to be ex making financial or health care decisions on their behalf. If you’ve never considered these documents, it’s an important time to evaluate who will make these decisions for you if you are unable now that you are no longer married.

Have You Considered Your Beneficiary Designations?

Many accounts such as bank accounts and retirement accounts have beneficiary designations. The same is true for life insurance policies. These designations are not automatically changed during separation. You must take the time to make these changes during your divorce. After your divorce, the majority of these designations will be changed by operation of law; however, if your spouse was listed and you have not updated them then they will pass to your estate and lose the protection of being a non-probate asset.

Do You Have a Plan for Your Minor Children

Although custody is a hot topic during the divorce, afterward, many parents fail to protect their children through their estate plan. For example, if your entire estate is left to your child/children, are you comfortable with it being managed by your ex-spouse? Have you given thought to who should serve as their guardian if your ex-spouse is not suitable? Are you comfortable with your ex handling your estate as personal representative? All of these issues can be addressed in your estate plan.

Click here to learn about Author Sara Warner.

Separation and divorce are messy and complicated, but your estate doesn’t have to be. If you are separated or divorcing, please consider meeting with our estate planning attorneys to ensure that all of your legal needs are being met. Call (800) 914-0620 today to request a consultation.