As an Atlanta Estate Planning Attorney, I often deal with divorcees. This is an article illustrating how important it is to get your will (and trusts) revised in the event of your divorce.
I’ve handled plenty of divorces and I realize talking with your Atlanta estate planning attorney is probably the last thing on your mind! But, after everything you’ve just gone through in the divorce, do you really want to leave your estate to your ex?
State law governs these things, and frankly, it’s not quite that bad in Georgia! In fact, Georgia amended their laws assuming that a divorced couple would NOT want to leave their assets to each other. After all, they just got through fighting about who gets what, right?
At one time, a divorce would automatically revoke an otherwise valid Will In Georgia. So, the gifts to the college, the golf clubs to the nephew, and Aunt Sally’s wedding ring to your daughter, were all out! The entire will was thrown out.
Now, that is not the case. Most of the will stays in place but the ex-spouse is treated as though he or she had predeceased the testator. I know, that sounds like lawyer-talk. Here’s an example: John and Sally, a married couple, draft wills leaving their assets to each other. After that, they divorce but neither re-draft their will. John dies. Although his will still says that Sally is the beneficiary, the court will “interpret” the will as if Mary was also deceased. So, John’s assets will go to whomever he put in the will to take in the event Mary was not alive at the time of his death. (Here’s another reason it is important to put in contingencies and alternatives in your will.)
An Atlanta estate planning attorney knows this. However, most non-lawyers don’t! So, if you do not change your will after your divorce, you may find yourself in a needless battle. My advice is to change your will! At least execute a “Codicil”, an amendment of sorts, changing the beneficiary from your ex-spouse to someone appropriate so that it is crystal clear.
Here’s a little detail that is important to note: The law specifically references “final divorce”. If you have filed for a divorce but it is not yet final, then this construction (interpretation) of the will won’t apply. The lesson here is, if you are in the middle of the divorce, go ahead and change your will. The divorce process may kill you and then everything goes to your current-but-soon-to-be-ex-spouse!
Don’t stop with the will. Look at your beneficiary provisions in life insurance policies and retirement accounts. In this case, you must change the beneficiary designation. Unlike a probate judge who would analyze the situation and rule accordingly, an insurance company may not get so involved. Once notified of your death, they’ll simply send out a check to whoever is listed as beneficiary. After all, it is not inconceivable that ex-spouses remain friends and leave those designations in place after the divorce. So, if this is NOT what you want, get on it!
Also, look at your Heathcare Directive. This is the instrument in which you have designated who you want to decide when to “pull the plug”. Well, I am willing to bet that after a divorce, your ex-spouse is NOT that person! Don’t worry, Georgia law intervenes to prevent that! But, you still need to select someone else to take on this very important position.
This also goes for any financial powers of attorney that you may have executed permitting your spouse to handle financial matters if you are indisposed for some reason. Really? Give your ex the keys to the bank? I don’t think so!
These changes (in your will or trust, and powers of attorney) can be made at any time whatsoever. However, if you are in the middle of a divorce (meaning, it is filed but not yet final) then some actions will be restricted until it is final.
When you file for a divorce, the court implements what is called a Standing Order, restraining your ability to move, transfer, sell or otherwise dispose of any marital assets. Obviously, one person should not be secreting the marital assets away from the other. So, no changes can be made during this time on certain accounts, like retirement accounts and other investment accounts.
As an Atlanta estate planning attorney who is also experienced in family law, I advise you to seek counsel on your estate matters BEFORE you file for a divorce. That way, you (and your kids) have the protection you need if you become incapacitated or pass away suddenly during the process.Brought to you by Atlanta Estate Planning Attorney, Lisa Blackstone.
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