Back in the mid-1990s, Texas’s own Mark Chesnutt had a hit on his hands. “Goin’ Through the Big D” is a surprisingly catchy tune about man who is going through a divorce who is frustrated that the judge gave his soon to be ex-wife everything they owned except the Jeep. One thing the song doesn’t talk about (probably because it doesn’t rhyme with enough stuff) is the man in the song’s estate plan.
Updating your estate plan is one of the first things you should do once you file for divorce. Most couples name their beloved as the person who should inherit the bulk of their estate and decide if and when to pull the plug should a health tragedy strike. After you are divorced, you are probably going to want someone else inheriting your assets and making those decisions.
The law recognizes this and actually cuts ex-spouses out of end of life planning documents that were created before divorce, but this does not mean that updating your estate plan is unnecessary after you get a divorce.
If you have children with your ex, you are going to want to update your plan to spell out what should happen if you die while your children are minors. Your spouse will most likely get full custody of your children, but what will happen to your financial assets? You probably don’t want your children to inherit them immediately, or even at the moment they turn 18. Do you trust your ex-spouse to take care of your estate until your children are financially responsible enough to take it on? Or would it be better to put your assets into a trust that is administered by a third party on your children’s behalf?
Last October, former basketball star Lamar Odom was found unconscious in a Nevada brothel. He was rushed to the hospital, and has now, thankfully, made a full recovery. Odom’s story made headlines for far longer than it probably would have otherwise because he was (and actually still is thanks to a very slow moving court docket) the husband of reality star Khloe Kardashian.
At the time of Odom’s accident, the couple had filed divorce papers, but the divorce had not been finalized. This meant that Kardashian, as his wife, was responsible for making healthcare decisions for him was he was incapacitated.
Nobody has claimed that Kardashian did not have Odom’s best interests at heart, but many divorcing couples would not be okay with their ex making life or death decisions for them.
If you are not comfortable with your soon-to-be ex making health-related and financial decisions on your behalf, you need to talk with an attorney about updating any documents you have that grant a power of attorney. This is something that should not be put off until after your split is finalized.
Life happens. People get divorced and remarried. Friends come and go. Property changes hands. That’s why my firm schedules a check-in with my estate planning clients every few years. There is no reason to wait to make changes to your estate plan though. If your life circumstances have changed, it is time to update your plan.