How a Divorce Can Affect Your Estate Plan, Part 1: Wills

 Posted on May 16, 2018 in Estate Planning

Most people recognize the importance of having an estate plan in place just in case something unexpected happens. Depending on the size and nature of your estate, a comprehensive estate plan may include a will, various types of trusts, powers of attorney, a living will, and more. Sometimes, however, the unexpected “something” can take the form of a divorce. A divorce can dramatically impact your existing estate plan, so if your marriage will soon be ending, you will need to review and amend nearly every element of your estate plan.

Over the next couple blog posts, we will highlight several types of estate planning tools and how they might be affected by your divorce.

Your Will

A last will and testament is one of the most basic elements of an estate plan. In your will, you are able to record your wishes regarding the distribution of your assets, guardianship of your minor children, and more. You can also name an executor who will be responsible for managing your estate during the probate process.

Under Illinois law, if you get divorced with a valid will in place, your will is not revoked and remains valid. Any provisions that pertain to your ex-spouse, however, are automatically revoked. This includes inheritances, appointments, or nominations for fiduciary responsibility. The law would treat your will as if your ex-spouse died before you.

Making Changes

Following your divorce, you will want to update any parts of your will that addressed your ex-spouse. In fact, you may even want to do so before your divorce is finalized, because if you die before your divorce is granted, the provisions pertaining to your spouse will remain in effect. This decision, of course, will depend on your situation and your relationship with your soon-to-be former spouse.

Keep in mind that you may need to make another update after your divorce is finalized so that your new will can address your assets after the division of marital property. A divorce could dramatically change your financial situation, so you might actually need an entirely new estate plan.

It is also important to remember that your divorce will only automatically revoke provisions that involve your spouse specifically. This means that if you named in-laws or your stepchildren as heirs, their status will not be changed by your divorce. The same is true of fiduciary appointments.

Keeping Your Ex-Spouse in the Will

In some cases, you may have valid reasons for wanting to keep your ex-spouse in your will. You may trust him or her to manage your estate, or you may wish to leave him or her certain assets. To do so, you will need to draft and execute a new will after your divorce is finalized. This also eliminates any confusion regarding your wishes, making a will contest less likely.

We Can Help

If you are considering a divorce and have questions about how your split might affect your estate plan, contact an experienced Lombard estate planning attorney. Call 630-426-0196 for a confidential consultation at A. Traub & Associates today.

Sources:

https://www.thebalance.com/estate-planning-documents-to-update-for-divorce-3993981

http://ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2104&ChapterID=60