If you’re going through a divorce, the last thing you probably want to do is deal with even more legal documents and more attorneys. However, if you have an estate plan, it’s crucial to understand how your divorce affects that plan and ensure that you make the changes you wish or need to make at the right time.
Because every estate plan is unique, it’s smart to consult with an estate planning professional as early as possible to determine what changes can be made immediately and which ones need to wait until the divorce is final.
When can I disinherit my spouse?
One of the most common questions people have is whether they can disinherit their soon-to-be ex. Unless you have a prenuptial or postnuptial agreement where your spouse has renounced their right to inherit any of your assets, you can’t prevent them from “renouncing” your will and seeking a share of your estate as allowed by law if you died before the divorce was final. Remember too that many of your assets are likely joint or marital assets that will be divided as part of the divorce.
Can I remove my spouse from any fiduciary role in my estate plan?
You can generally do that at any time since the law doesn’t require a spouse to be the executor of their husband or wife’s estate. The same is true if you’ve designated them to have powers of attorney (POA), to be a trustee or to be your health care agent. You can change those appointments any time.
Again, the law will take care of that automatically when the divorce is final. It states that divorce “revokes…any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise.” If you want your spouse to continue in any of these roles after the divorce is final, you’ll need to codify that in your estate plan.
Remember that your soon-to-be ex is governed by these same laws (assuming their estate plan is also in Kentucky). That’s why it’s helpful if the two of you can coordinate your changes to your respective plans.
It’s also important to remember that some of your divorce agreements may require additional modifications to your estate plan. That’s why it’s important to give it a final thorough review, with solid legal guidance, after your divorce to ensure that any changes required by those agreements have been made.