While a separation agreement or equitable distribution order can help untangle your assets from your ex-spouse’s, a review of your assets, agreement or order, and estate planning documents with an estate planning attorney can help ensure how your assets are handled or disposed of, if you become incapacitated or die during the separation proceeding or after divorce. The following isn’t a complete list of what you should review with an estate planning attorney; however, it’s a good start:
Your separation agreement or equitable distribution order: These documents will inform the attorney of a division of assets that has taken place or which need to be accomplished.
Previously signed estate planning documents: If you named your former spouse as a fiduciary (e.g., executor, trustee, health care agent, attorney-in-fact, etc.) or beneficiary, provide copies of those documents to your attorney for review. For example, the separation agreement or court orders may not revoke your former spouse as the named attorney-in-fact in your financial power of attorney.
Assets which have beneficiary designations: Make sure you change your designations. Unfortunately, for qualified retirement plans such as a 401(k), you can’t change the beneficiary designation from your ex-spouse without a qualified domestic relations order (“QDRO”), or a consent document signed by your ex-spouse.
Lists of assets and debts: Separate lists for yours and your ex-spouse’s. Often, you and your ex-spouse have become jointly and separately liable on debts (e.g., mortgage), and court orders and/or separation agreements rarely change your liability on those debts; although they may require attempts to refinance the debts.
Guardianship of minor children: Try to come to an agreement with your ex-spouse regarding who will be the guardian of your children if something happens to you both, to avoid argument between your and your ex-spouse’s families.
List of primary and secondary fiduciaries: Decide who will handle your health and financial decisions (during your lifetime and after) for you and your beneficiaries. You may need a personal representative for your estate, trustee for any trust, guardian for any minor children, health care agent under a health care power of attorney, and attorney-in-fact under a financial power of attorney.
It’s important to seek an experienced attorney for legal advice regarding updating your estate plan while you’re handling your separation and/or divorce.
Eran L. Weaver is an estate planning, estate administration and business attorney at Weaver, Bennett & Bland, P.A. Contact Eran at Weaver, Bennett & Bland, P.A. at (704) 844-1400. The information contained in this article is general in nature and not to be taken as legal advice, nor to establish an attorney-client relationship between the reader and Eran L. Weaver or the law firm of Weaver, Bennett & Bland, P.A.
Weaver, Bennett & Bland, P.A. serves clients in North Carolina and South Carolina. Located in the town of Matthews between Mecklenburg and Union Counties in North Carolina since 1982, we proudly provide legal services throughout Charlotte, Matthews, Mint Hill, Stallings, Indian Trail, Monroe, Marvin, Wesley Chapel, Weddington, Waxhaw, and other surrounding communities in the Greater Charlotte area. Our clients range from national corporations and major banking institutions to individuals and local companies.