The process of getting a divorce can be rife with stress and painful emotions, but it can also be a time to find renewal and a fresh start. This is quite literally the case when it comes to what to do with your estate plan during, or following a divorce. In fact, the recommended first step in updating one’s estate plan following a divorce is to revoke the old will by shredding or tearing it up and creating a new one.
We’ve answered three of the most common questions about how a divorce will impact your Colorado estate plan below, but it’s important to remember that each divorce and estate plan is unique and may be subject to exceptions or special considerations depending on the circumstances. You should work with both your divorce attorney and your estate planning attorney to ensure you don’t miss anything and that any changes you make are in line with the law.
Robinson & Henry has experienced attorneys in both family law and estate planning. Call 303-688-0944 or click here to schedule a free consultation with an attorney from either practice.
Q: What happens to my current estate plan when I get divorced?
A: In the State of Colorado, a divorce decree automatically revokes the designation of the ex-spouse as a beneficiary or fiduciary in any will or trust, this means that, unless you update your documents (including beneficiary designations on any life insurance policies or retirement accounts), your assets will go to the named contingent beneficiary instead. This extends to any appointments naming your spouse as your personal representative/executor or power of attorney.
Q: Do I have to wait until the divorce is final to update my estate plan?
A: No, and in fact, it’s wise for spouses to revise their estate plans while their divorce is pending because Colorado law only automatically revokes a designation of a former spouse as a beneficiary or a fiduciary in a will after a divorce is final. If a spouse dies before the divorce is final, then his/her assets could still go to the other spouse unless the will had been updated to designate other beneficiaries.
It is, however, important to consult with your divorce attorney before making any changes to your estate plan because when one spouse files for divorce, a temporary injunction goes into effect that prevents both spouses from transferring, encumbering, concealing or in any way disposing of any marital property without the other spouse’s consent or an order of the court.
In cases where you still want your spouse to be included in your will as a beneficiary, fiduciary or power of attorney, you will have to re-insert them into your will after the divorce is final.
Click here to read about estate planning if you’re getting remarried.
Q: The law says my child(ren) will automatically go to my ex-spouse if I die before my child(ren) are 18, but what if that’s not what I want? How can I make that known in my will?
A: It’s correct that if you pass away before your child(ren) are 18 and your ex-spouse (the child(ren)’s other biological parent) is still alive, the law says he/she will become their sole guardian. If you believe your ex-spouse is not responsible or feel he/she is abusive or otherwise unfit to parent, you should attach a memorandum to your will explaining your reasons so the court will at least consider that the remaining parent is unfit. You can also include any police reports or court records that may further speak to why your ex-spouse is unfit to parent.
You should, of course, also name in your will the person(s) whom you would like to act as guardian(s) for your children should anything happen to you. This is something you should do regardless of whether you’d want your ex-spouse to have sole guardianship since whomever you name will be considered for guardianship if both you and your ex-spouse die before the child(ren) are 18.
Ideally, you and your child(ren)’s other biological parent would name the same person(s) in your wills to avoid fighting amongst family members in the unfortunate event that both both of you are deceased. However, if you and your ex-spouse can’t agree on a guardian, then it’s important to consult with your divorce and estate planning attorneys about how to best approach the situation and remember that these things, no matter how uncomfortable they are to talk about, are best dealt with while everyone’s alive and well.
Click here to learn more about estate planning for parents of minor children.
As in all situations, the best way to make sure your estate plan is as comprehensive as possible is to work with an attorney like Robinson & Henry’s Colorado Springs estate planning attorney Michael Hanchett.
Michael Hanchett is Robinson & Henry’s lead estate planning attorney. He helps individuals and business owners plan for the future by drafting powers of attorney, last wills and testaments, trusts and advance directives. Please call (303) 688-0944 or click here to schedule a free consultation with Mike.