It’s hard enough to tackle standard estate-planning issues, but a divorce or remarriage further complicates the task. Here’s what you need to know if you’ve been through one of these life events recently, or might be in the future…
DIVORCE: ACCOUNTS & POLICIES
Your former or soon-to-be former spouse likely was named as beneficiary on many of your investment accounts, retirement accounts, life insurance policies and annuities. If you’re like most divorced people, you no longer want him/her to receive these assets after your death. Contact account and policy providers to find out how to update these beneficiary designations.
Do this before filing for divorce, if possible, so that your spouse won’t inherit if you die before the divorce is finalized. In some states, once you (or your spouse) file for divorce, an Automatic Temporary Restraining Order (ATRO) might prevent you from updating beneficiary designations until the divorce is final. You won’t be allowed to remove your spouse as beneficiary from most pension and retirement plans without the spouse’s consent until after the divorce is complete. This is true of qualified pensions and retirement plans, including 401(k)s, but not of IRAs (though your spouse might legally own some or all of your IRA if you live in a community property state).
Update your health-care and financial powers of attorney as soon as the divorce process begins as well. Fail to do this, and it might fall to your former spouse to make life-and-death decisions or important financial choices for you should you become incapacitated.
DIVORCE: WILLS & TRUSTS
You may not want to bother updating your will and living trusts—in most states, the law covering the court process called probate automatically disqualifies an ex-spouse as a beneficiary in these documents. Ask your divorce or estate-planning attorney whether your state does this.
Some people decide to remove their former spouses from their wills and trusts anyway, because they want them out of their estate plans for emotional reasons or they’re concerned that these laws could change in the future.
If you funded an irrevocable trust that names your ex or soon-to-be ex as beneficiary, not only will this ex not be automatically removed as beneficiary upon divorce, it might not be possible to remove him/her at all. There’s a reason that it’s called an irrevocable trust. Ask your estate-planning attorney whether you have any options with such a trust, but don’t be optimistic.
Warning: If you are granted ownership of jointly held property in your divorce settlement, this ruling does not automatically update ownership status of these assets. It’s up to you to remove your ex as co-owner. Contact the insurance or investment firm managing the asset, or ask your estate-planning attorney or divorce attorney how to do this.
When people remarry, it’s fairly common for each partner to enter the union with substantial assets. The primary estate-planning issue becomes which partner will control which assets. Usually they decide that each will maintain control of assets that he/she brought into the marriage, while assets accumulated during the marriage will be shared—but reality can get more complicated.
Without proper estate planning, the assets of the first spouse to die will pass to the surviving spouse, which could result in eventual distributions that the first spouse would not condone if he/she were still alive. For example, the surviving spouse could pass the first spouse’s assets to the surviving spouse’s own kids or a favorite charity rather than to the departed spouse’s children, as intended. Even a cherished family heirloom could pass outside the family.
Ways to prepare, starting with one that gives you the least control…
Tell your new spouse which heirs you would like to eventually inherit your assets and trust the new spouse to follow through on your intentions.
Potential complication: Even if you trust this spouse completely, he/she later might go against your intentions, particularly if he/she remarries or has kids from a prior relationship who experience financial problems.
Set up a trust to receive the assets of the first spouse to pass away. The surviving spouse could receive income from this trust, but the first spouse’s chosen heirs would inherit the assets upon the second spouse’s death.
Potential complications: The income from this trust might not be sufficient for the surviving spouse’s needs.
Also, this trust would receive only assets that the first spouse to die owns in his/her own name, not those owned jointly with the surviving spouse and not those that list the surviving spouse (or anyone else) on beneficiary-designation forms, which can lead to unintended consequences if the first spouse to die thought other major assets would be transferred to the trust as well.
Ask an estate-planning attorney to help you draft a contract between spouses detailing how assets will be divided among heirs upon the second spouse’s death. Include this contract in both partners’ wills or revocable trusts. This can provide the surviving spouse with greater access to resources than the trust option mentioned above while still protecting the intentions of the first spouse to die.
Potential complications: These contracts must be drafted carefully to avoid loopholes that could undermine their intent. For example, the wording must prohibit large wealth transfers by the surviving spouse during his/her lifetime. Hire an experienced estate-planning attorney to draft the contract, not a friend or relative who happens to be a lawyer. This strategy tends not to work well with marketable securities, which can become comingled with assets belonging to the surviving spouse (or the surviving spouse’s next spouse if he/she remarries again), making it very difficult to confirm that the contract is being honored.
Consider using the trust option for most assets—but first speak with a financial planner to make sure that the assets that the surviving spouse receives from the trust will be sufficient for his/her needs and confirm with your attorney that the assets that you expect to go into this trust will indeed do so upon your death. Use the contract option for identifiable assets such as a family business that can’t easily become comingled.
Be aware of spousal minimum share rules. Most states have laws requiring a surviving spouse to receive a minimum share of his/her deceased spouse’s estate, often one-third or one-half. When people remarry, they often wish to leave the lion’s share of their assets to their kids from their first marriage instead, particularly if the new spouse has considerable assets of his own. Two ways around spousal minimum share rules…
The spouse’s minimum share can be waived through a prenuptial agreement.
Assets can be made payable directly to the children. List your children from your first marriage as named beneficiaries on some of your financial accounts, insurance policies or other assets…or title accounts and assets as jointly held with these children. These assets will not be included in your estate, so in most states, they will not be included in calculations of the surviving spouse’s minimum share. Speak with an estate-planning attorney to confirm that this is true in your state.