Updating Your Estate Plan After a Divorce

Many married couples include their spouse in their will, grant each other powers of attorney, and assign them as beneficiaries for insurance and bank accounts. Although updating your estate plan might not be a priority after a divorce, it remains crucial. While North Dakota law typically prevents a former spouse from inheriting without an updated estate plan, there are multiple reasons to revise these documents. Importantly, divorce brings significant life changes that warrant corresponding adjustments to your estate planning.

Documents to Review for Estate Planning After Divorce

Divorce doesn't automatically nullify an entire estate plan, nor does it activate a pre-marriage estate plan. While divorce revokes provisions in favor of an ex-spouse, it alters various family dynamics. It's crucial to reassess your estate planning documents to align them with your current intentions.

During estate planning post-divorce, several documents merit review:

- Last will and testament: Following divorce, prioritize reviewing your will. If your former spouse was a beneficiary or executor, make necessary revisions. Creating a new will might be prudent.

- Healthcare proxy: Update your healthcare proxy if your ex-spouse was listed. Ensure your desired medical decision-maker is designated.

- Beneficiary designations: Although divorce cancels nonprobate assets' beneficiary designations for an ex-spouse, neglecting to name an alternative beneficiary could lead to probate proceedings.

- Power of attorney: In North Dakota, a power of attorney naming a spouse as principal terminates upon divorce filing. Appoint a healthcare and financial power of attorney agent.

Failing to update your estate planning documents might lead the law to consider them nonexistent. Even if an ex-spouse's share is revoked in your will, their intended property won't necessarily revert to other beneficiaries. Essentially, that portion of your estate could be treated as if you died intestate.

Creating a New Will

After divorce, it's crucial to reconsider the distribution of assets, especially if you had included your spouse's family members in your will. Your past will likely no longer aligns with your current objectives. While you have the freedom to choose beneficiaries, explicitly mentioning your ex-spouse in your will is necessary to ensure your wishes are followed.

Crafting a new will also demands careful thought about selecting the estate executor. If your former spouse was initially chosen, divorce nullifies that appointment, and an alternate executor takes over. If no alternative was named, the probate court would adhere to state law to appoint an executor. Thus, it's essential to deliberate on this decision to uphold your intentions effectively.    

Think About Guardianship Issues for Minor Children

Within your will, designating a guardian for your minor children is crucial. If you pass away, your former spouse would likely gain custody of shared children. While this arrangement might work for you, consider that your ex would also gain access to your children's inherited assets. Given that an adult must manage these assets until they turn 18, it's wise to account for these aspects in your estate plan.

Creating a trust and appointing a trustee to oversee it may offer a way to safeguard the assets for your children. This approach ensures controlled distribution of funds according to your wishes. For example, you could stipulate funds being released at a specific age or upon reaching certain milestones, like college graduation. This strategy allows you to retain authority over the assets and prevents your ex from accessing them.

Contact an Experienced North Dakota Estate Planning Attorney

Navigating estate planning post-divorce can indeed be daunting. Seeking guidance from a skilled attorney is highly recommended to understand your rights and choices fully. Situated in Fargo, the estate planning practice at Fremstad Law Firm specializes in assisting individuals and families across North Dakota and Minnesota with diverse estate planning needs. Feel free to contact us online or by calling (701) 478-7620 to learn how we can help.