Estate planning when you are separated or divorced
A legal separation or divorce from your spouse can mean the start of a new life. This is a major life milestone that requires an update to your estate plan or the creation of a new estate plan to ensure someone will be able to assist you if you are unable to make your own decisions and to provide instruction on the disbursement of your property.
During a separation or divorce you can update your power of attorney documents for financial and medical decisions. You will likely want to revoke any power of attorney naming your spouse. You can obtain copies from the parties who have received the power of attorney and shred the copies. You will also want to provide notice to the attorney-in-fact that you are revoking the power of attorney. Your new power of attorney will also state all previous power of attorney documents are revoked and you can provide the new document to those who will need it. You will update your Will, Trust, and beneficiary designations once the divorce is completed.
After your divorce or legal separation, your comprehensive estate plan will be similar to a single/unmarried plan which will include all the documents you need to ensure you have planned for possible incapacity and preserve family harmony at your passing. Taking the proactive step to update or create your estate plan will avoid unintended consequences of not having an estate plan in place. You will get to decide who will receive property, how they will receive it and when. You will also have someone you trust to speak for you if you are unable to speak for yourself or need assistance with financial and medical decisions. If you have minor children, you will want to ensure the proper steps are taken so your minor children will not inherit property directly. This planning will also avoid your ex-spouse/parent of your minor children from controlling the money and property you are leaving to your minor children. You taking the time to create your estate plan is a gift to your loved ones.
You will also want to coordinate with your financial advisor and employee benefit department to ensure you have updated your beneficiary designations appropriately.
Elective share in Kansas and Missouri protects spouses from being disinherited by a spouse. The elective share is determined by Kansas or Missouri statute and is enforceable until a divorce or legal separation. The elective share will require the surviving spouse receive the portion as allowed by law even if the Will or Trust attempted to leave the spouse less than the amount required by law. Prenuptial agreements may have been entered into before the marriage where the spouses agreed to less than the elective share and if properly drafted can result in the surviving spouse receiving less than the elective share allowed by the state. If spouses are relying on a prenuptial agreement, they will want to ensure they are providing a copy of the agreement to their financial advisor, life insurance agent, and retirement benefits coordinator and complete any forms required.
Kansas and Missouri have some laws in place to revoke an ex-spouse’s right to inherit once a divorce is finalized. These laws do not address all assets so it is essential you update your estate plan.