A scene in the recent HBO series And Just Like That… depicted a shocked Carrie Bradshaw at the reading of her late husband’s will and discovering he left a substantial sum to his ex-wife. If you are in the process of getting a divorce – or are already divorced – it’s important to review your estate plan including your will, trusts, beneficiaries, health care designations and other legal documents so you don’t accidentally leave money to your ex-spouse – or leave your health care and end-of-life decisions in the hands of a vengeful ex-spouse! If you are going through a divorce, an experienced estate planning attorney can help protect your assets and your peace of mind by ensuring that all your estate planning documents and beneficiary designations are properly updated in accordance with Illinois laws.
1. Can I Revise My Will During Divorce?
Illinois law allows you to revise your will during your divorce. Under Illinois law, if you get divorced with a valid will in place, your will remains valid even though you are legally divorced from your ex-spouse. State laws vary on changing the conditions of your will before a divorce is finalized, so be sure to consult your divorce attorney to make sure your actions are legal in your state.
2. Can I Change an Irrevocable Trust Where My Ex-Spouse Is a Named Beneficiary?
When creating a trust, it’s not always necessary to have a named beneficiary. Instead, you have the option of leaving your assets to your “spouse.” If you have an irrevocable trust such as an irrevocable life insurance trust, and your ex-spouse is named as a beneficiary of that trust, you cannot remove your soon-to-be-ex from your trust. If your irrevocable trust specifies your heir is your “spouse” or “wife” or “husband” the trust will go to whoever you are married to when you die.
3. When Can I Change My Beneficiaries During a Divorce?
If you have designated beneficiaries on your accounts you can review and update your beneficiaries at any time before, during or after your divorce. This applies to:
• Insurance policies
• Wills and trusts
• Bank accounts
• Pension and retirement plans
• Social security
• Stocks and bonds
According to the Social Security Administration regulations, “If you are divorced, your ex-spouse can receive benefits based on your record (even if you have remarried) if: Your marriage lasted 10 years or longer.”
Note: If your divorce decree requires that you have an insurance policy with your ex-spouse as the beneficiary, you are legally not allowed to change the beneficiary designation against the divorce decree requirements, and the divorce decree can override any changes you do make to your beneficiaries.
4. When Can I Change My Health Care Designations?
Advanced healthcare directives are living documents that you can update and change as your situation changes:
If you become incapacitated, who do you trust to make your health care decisions? If you don’t appoint a health care proxy, the courts will assign someone to make your medical decisions – and it may not be a person you trust. A Healthcare Power of Attorney is a durable power of attorney, a legal device that allows one person to indefinitely make decisions on behalf of another.
A Medical POA is a Durable Power of Attorney for Health Care is a signed, witnessed legal document where someone designates an agent to make health care decisions if they are temporarily or permanently unable to make such medical decisions. A durable power of attorney for health care lasts indefinitely and the person granting the POA authority typically retains the power to revoke it.
You should review and update your health care designations during and after your divorce to be sure that a person you trust is in charge of your healthcare decisions if you become ill or incapacitated.
5. What Happens To My Power Of Attorney After We’re Divorced?
Power of Attorney designations are automatically cancelled when you get divorced in Illinois by the divorce decree. As a precaution, you should consult your estate planning attorney to ensure your POAs naming your ex-spouse are revoked.
• 3 Estate Planning DON’Ts If You’re Getting A Divorce
• FAQs: Should I revise my will during divorce?
An estate planning attorney is an important part of your divorce team. Contact an experienced estate planning attorney at Estate & Probate Legal Group in Oak Brook, Illinois today at 630-864-5835.