Whether you are married with children, married with no children, recently divorced, never married, or retired with grown children, there are unique considerations that each individual or family should be thinking about when trying to plan their estate. This post will focus on estate planning for someone who has been recently divorced.
Now that you have finally come to the end of the divorce process, the last thing you probably want to do is go see another attorney. If you don’t update your estate plan after a divorce, there can be some significant unintended consequences, including your ex-spouse controlling your assets after you are gone or even during your life.
If You Don’t Already Have an Estate Plan
Here are some considerations for estate planning after divorce if you don’t already have any estate planning documents (wills, trusts, powers of attorney, health care directives, etc.) in place.
Minor Children
If you have minor children from your prior marriage and you don’t have an estate plan in place when you die, it is likely that your minor children will inherit your assets. However, someone will have to watch over the assets for your children until they turn 18 — this person is called a custodian of the assets. Your ex-spouse will be the presumptive natural guardian of your children. Since your ex-spouse is the guardian of your minor children, who do you think the Court will appoint as custodian to manage your children’s assets? That’s right: your ex-spouse.
If you want to avoid that, you should be setting up trusts for your minor children through your estate plan. You can have a basic will for yourself that creates trusts for your kids upon your death. These are called “testamentary trusts” because they are created by your “last will and testament”. The downside to using a will to create trusts for your children is that the will must then go through the probate process to be validated. This can cost thousands of dollars which means your children will receive less money from your estate. One other disadvantage to going through probate is that your ex-spouse will have an easy platform in which to make objections to the Court. Your ex may object to your appointment of someone else as trustee for your children’s funds, or your ex may object to the specifics of the distributions you have set up for your kids.
If you set up a revocable trust, you can keep your estate out of Court and free from the objections of an ex-spouse described above. A trust is a private document that avoids probate. This makes it far less likely that your ex-spouse will be able to challenge your estate plan. Having a trust will also save your children thousands of dollars on the probate process.
What to Do If You Don’t Want Your Ex-Spouse to Have Guardianship Over Your Children if You Die
Your ex-spouse will be the presumed guardian of your children if he or she is the biological parent of your children. If you don’t want that to happen, you can express in your Will your desire that someone else be named guardian upon your death. This will be a difficult hill to climb for your executor, but you could put a provision in your will stating:
“It is my strong belief that my former spouse, [INSERT NAME] should not have custody of our children. I have been advised that under current Minnesota law the testamentary guardian appointed by me in my will cannot act unless the parent of my children either predeceases me or is adjudged incapacitated prior to my testamentary guardian’s acceptance of appointment. It is my further understanding that a court appointed guardian cannot be appointed if my children’s parent survives me, unless all of my former spouse’s parental rights to custody have been terminated or suspended by prior court order. Because I believe that there might be grounds to determine that my former spouse is incapacitated, or to determine that my former spouse’s custody of our children be terminated or suspended, I authorize, but do not direct, my Personal Representatives to pay from my estate the attorney fees and other expenses incurred in any proceeding relating to a determination that my children’s parent is incapacitated or should have my former spouse’s parental rights to custody terminated or suspended.”
NOTE: The above language should not be inserted into your Will or Trust without consulting a qualified licensed attorney to review the language of your documents and advise you on the effect of the language on your documents.
If You Do Already Have an Estate Plan
Now that you are divorced, if you have an estate plan currently in place and you die, there is a risk that your ex-spouse could inherit your assets. If you have a Will or Trust designating your spouse as beneficiary, those designations are revoked under Minnesota law.
Minn. Stat. § 524.2-804 provides that a divorce or dissolution of marriage will revoke any revocable disposition, beneficiary designation, or appointment of property made by an individual to the individual’s former spouse in a governing instrument. Minn. Stat. § 501C.1207 provides that, for a trust, dissolution or annulment revokes any disposition, provision for beneficial enjoyment or appointment of property made by the trust instrument to a settlor’s former spouse unless the trust specifically provides otherwise.
Despite this, would you really want to have to make your family go to Court to confirm that your ex-spouse should not be inheriting your assets from your estate or trust? Of course not! It is far better to update your estate planning documents and specifically revoke your old estate planning documents to ensure that there is as little involvement with your ex-spouse as possible.
Update Your Beneficiary Designations After a Divorce
There are countless tales of people failing to update beneficiary designations following a divorce. If you don’t update your beneficiary designations following a divorce and you leave your ex-spouse as beneficiary, your ex-spouse could inherit your assets even though your Will or Trust leaves your assets to your children or someone else. It is critical that you review your beneficiary designations and remove your ex-spouse as primary beneficiary. Note, however, that if your divorce decree requires you to list your spouse as beneficiary of life insurance, you should consult an attorney before removing the spouse as beneficiary.
What Happens if You Become Incapacitated After a Divorce?
It is important to ensure that you have a Health Care Directive, Powers of Attorney, and HIPAA Waiver so that you designate other individuals to make decisions for you relating to your legal, financial, and health care matters. If you don’t have a Health Care Directive or Power of Attorney and someone needs to make decisions for you regarding your health care or your finances, your family may have to file a guardianship petition with the court to get the power needed to make those decisions. If your ex-spouse is vindictive, they may try and object to the court proceedings and gain power or control over those decisions, simply because they share children with you. It will make you sleep a lot better knowing that you have named other individuals to fill those roles AND avoid court proceedings by having those simple documents in place.
The above is a general outline of the things you should consider regarding your estate planning after a divorce in Minnesota. The unique aspects of your individual situation should be discussed with an experienced estate planning attorney who is licensed in Minnesota. Contact our office today if you would like to discuss creating an estate plan that protects you and your assets from an ex-spouse. Click here to schedule an appointment today or call our office at (952) 658-6503.
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Zach Wiegand is a Minnesota probate attorney and estate planning attorney and the owner of Gold Leaf Estate Planning, LLC. Gold Leaf Estate Planning is an estate planning law firm that also handles probate and trust administration in Minnesota. We serve the Twin Cities metropolitan area with a focus on estate planning for clients in Burnsville, Eagan, Savage, Prior Lake, Lakeville, Apple Valley, Eden Prairie, Farmington, Rosemount, and the South Metro as well as clients in Woodbury, Lake Elmo, Maplewood, Oakdale, St. Paul and the East Metro. Our firm has offices in both Burnsville and Woodbury (Lake Elmo). The firm also handles probate in Dakota County, Washington County, Scott County, Hennepin County, and Ramsey County and most other counties in the Twin Cities Metro area. Zach has been named a Super Lawyer – Rising Star for 2017, 2018, 2019 and 2020. In addition, Zach is a member of the Society of Financial Service Professionals, the Twin Cities Estate Planning Council, and WealthCounsel – a national organization of estate planning attorneys dedicated to practice excellence. You can contact Zach via e-mail at zach@goldleafestateplan.com or by calling (952) 658-6503. Gold Leaf Estate Planning is located in Burnsville at 3000 County Road 42 W., Suite 310, Burnsville, MN 55337 and in Woodbury/Lake Elmo at 8653 Eagle Point Boulevard, Lake Elmo, MN 55042.
