Revising Your Estate Plan After a Divorce

By Chris Tymchuck
Founding Attorney

Going through a divorce is a major life change. You likely have a lot on your mind—from property division to child custody. However, once the dust settles, you should also have updating your estate plan on your to-do list. If you fail to update your estate plan, your property may go to someone that you did not intend—including your ex-spouse in some circumstances.

You should adjust your estate plan so that it reflects your wishes based on your new family situation. Your estate plan includes more than just your will. A divorce will likely affect all aspects of any estate plan that you use that involves your ex-spouse.

Revoke Your Prior Will

In most situations, your new will replaces your old one. However, you should take steps to ensure that your prior will is no longer effective so that there is no question when that time comes.

You can revoke your will by physically tearing it up. However, destroying your will alone may not be enough to revoke it. This is, in part, because the court will often accept copies of the will instead of the original. Instead, you should create a new will and explicitly indicate in the new will that you are revoking any and all prior versions. Then, there is no question about which will is the valid one.

Changing Your Will

In Minnesota, your will changes “automatically” when you go through a divorce. Your former spouse is treated as predeceasing you, and any property that should have gone to him or her will go to your contingent beneficiaries. Nonetheless, it is a good idea to update your will to change your beneficiaries so there is no question of who gets what. Other aspects of your will may change after a divorce as well, so it is a good time to review the entire plan to ensure it still complies with your wishes.

Altering Health Care Directives

If you have a health care directive that names your spouse as your health care agent, it will be automatically revoked as soon as you begin divorce proceedings in Minnesota. This is true unless your health care directive states something to the contrary.

If you have an alternative agent named, that person will step into the role of your ex-spouse automatically. However, if you do not have an alternative agent, then your health care directive is essentially voided altogether because no agent is named.

Changing Your Power of Attorney

Your ex-spouse was likely involved in any power of attorney instrument you may have created. Like your health care directive, a power of attorney is automatically revoked when you begin divorce proceedings.

Keep in mind, however, that it may be a good idea to change this instrument even before you start divorce proceedings because powers of attorney often permit your spouse to have broad access to your finances, which may not be a good idea if you are considering divorce.

Getting Estate Planning Help After a Divorce

It is a good idea to run through all of the estate planning tools that you have in place after a divorce to adjust them accordingly. Unique Estate Law can help you with this process. Call today to schedule an appointment.


About the Author
As a Minneapolis Estate Planning and Probate attorney I help build and protect families through the adoption, estate planning, and probate processes. I also have experience working with families on issues related to their small businesses. I know how difficult it is to find time to plan for the future and I am here to help walk you through it.