I once had a client who had been married, had children, then eventually divorced and remarried. However, this client never updated old estate plans that named the first wife as the primary beneficiary. This creates a conflict. Does the first wife inherit as the estate plans indicate, or does the second wife receive the assets?
Divorce is difficult for all involved and often very contentious. Some states will nullify wills after a divorce to prevent conflicts, and both parties would need to draw up new will or trust documents. However, Maryland is not a state that includes this provision—wills and trusts are not nullified or voided after a divorce, though specific bequests of property passing through the will to former spouses are voided. Part of the steps one should take when going through a divorce should also include updating estate plans, wills, trusts, etc.
Guardianship of Children
When updating wills or trusts, it’s important to consider if the guardianship of any children has changed. Have your children grown to be of legal age and no longer need a guardian? Or, if they are still minors, have your temporary or permanent guardians changed?
Distribution of Assets
A typical scenario for married couples is to have all of the estate go to the spouse, then to the children if the spouse is also deceased. However, a divorce is likely to change that scenario. Assets must be divided; bank accounts have changed; or you may not decide that you don’t want your estate to pass to a family member after all. When updating your estate or will documents, these questions will be important to consider.
Medical Powers of Attorney
Again, the typical scenario is to have the spouse act as the primary medical power of attorney, followed by an adult child, family member, or close friend. However, after a divorce, that option is unlikely to still be desired. Who would make decisions on your behalf if you are incapacitated or unable to make decisions for yourself? Would it be a child, other family member, or a close friend? It is important to choose someone who is reliable and trustworthy and who will honor your medical wishes. Often this decision falls to an adult child after a divorce, or to a new spouse if remarriage occurs.
After a divorce, you want to make it clear who makes decisions on your behalf and who is legally able to inherit your estate. Other documents to consider updating are life insurance beneficiaries, annuities, retirement plans, deeds and titles, etc. Neglecting to update these documents could have enormous ramifications for yourself as well as for your loved ones.