Do I need to change my will before my divorce?

You signed your will and created a revocable living trust. You established your advance directive plan, including your living will and power of attorney. Most likely, you named your spouse as the primary beneficiary and proxy on these documents as well as on any life insurance, investments or pay-on-death accounts.

With everything in place, you may not have considered how a divorce would affect your estate plan. Whether you have already settled your divorce or you are just taking the first steps, understanding the importance of a thorough review of your estate planning documents is critical.

Wills and trusts after your divorce

A divorce will certainly alter your goals for your estate after your passing. Even before a judge puts a signature to the divorce decree, your plans for your estate may have undergone a drastic change.

While in some states, your divorce would revoke your will in its entirety, in North Carolina, only those provisions pertaining to your former spouse become null. Any elements of the will that benefit others — for example, your ex-spouse’s children or other members of your ex’s family — remain intact. You may not want your stepchildren or former in-laws to benefit from your estate after the marriage ends, but you will have to make that clear by legally changing the beneficiaries.

The contents of a trust receive a similar treatment as long as it is a revocable living trust. If the trust is irrevocable, you cannot change it. That is why it is a good idea to include a provision in your trust that a divorce removes your spouse as a beneficiary.

Seeking guidance

Until the day your divorce is final, in the eyes of the law, you are still in a marriage. Waiting until that day may place you and your estate at risk. While the law automatically revokes some designations at the time of divorce, this may not help if the unthinkable happens while the divorce is still in progress. Do you really want your soon-to-be ex-spouse making critical medical decisions for you if you become incapacitated?

To protect your estate in the event that an unforeseen accident or illness should incapacitate you before settling your divorce, it is wise to consult with an attorney who can advise you on the best actions to take to ensure your estate plan truly reflects your wishes and your goals.

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