Going Through a Divorce? Don’t Forget to Disinherit Your Soon-to-be Ex

Guest Blogger: Attorney Tracy Ries

For parents going through a divorce, the right-now priority is to retain matrimonial attorneys to negotiate or litigate a plan to divide up assets, determine alimony and child support payments, and haggle over children’s residency and visitation schedules.

And it’s understandable that’s the top focus from a legal standpoint. But assuming you and your soon-to-be former spouse have, at some point, put into place estate planning documents—wills, trusts, powers-of-attorney, life insurance policies or anything else—you will want to revisit those ASAP.

Among other reasons, that’s because without a will that names someone you trust to manage money for your minor children, their other parent—your ex—likely will be named to oversee the distribution of your money. Indeed, upon your death, the person you have divorced and disinherited will be in charge of managing the inheritance you have left behind.

Once a divorce is final, the Probate Act of 1975 (755 ILCS 5), Section 4-7(b), takes care of most issues related to estate planning, in that it “revokes every legacy or interest or power of appointment given to or nomination to fiduciary office of the testator’s former spouse in a will executed before the entry of the judgment of dissolution of marriage or declaration of invalidity of marriage.”  (See our Guide to Probate for more information on Probate.)

But while the divorce is still in process, the Probate Act does not yet apply—and even afterward, it doesn’t address situations like members of the former spouse’s family who might be named in your will, or what happens if you’ve named your ex-spouse as a life insurance policy beneficiary.

Given those issues, those in the middle of a divorce—or who have recently gotten divorced—should talk to an estate planning attorney about revoking their current will, and creating a new one that is congruent with their current goals and desires.

Soon-to-be-divorcees also should create a trust for the benefit of any children and name a guardian for them, should they and the other parent both be unable to provide care. The trust is a preferable option to providing an outright inheritance for your children—simply removing the ex-spouse’s name from the will and adding your kids—because the money is better protected from not only your ex-spouse, but a future ex-spouse of your child, or any creditors, including a plaintiff who sues them for any reason.

Divorcees also should update (or create, if needed) durable power-of-attorney designees for their healthcare and property decision-making, in case they become incapacitated while alive and unable to make decisions.

Finally, during or shortly after a divorce, you will want to review any plans with beneficiaries and/or payable-upon-death accounts to make sure they are in line with your current intentions—so the right people, or charities, receive the funds.

With all of those formal legal documents in place—all of which every person should create—you can move forward with your newly single life, knowing that the rest of your family is taken care of, in the way you would want, should the end of your life suddenly loom on the horizon.

This may sound complex at first read, but an estate planning attorney can help streamline and simplify the process enormously.  A will or a trust are the best forms of protection for your business and family.   The firm of Bellas & Wachowski Attorneys at Law can help you make the necessary decisions now to take advantage of this opportunity in a cost-effective manner.  Contact Attorney Tracy Ries at tracy@bellas-wachowski.com or 847-823-9030 x221 for more information.