Estate Planning Before Or After A Divorce

If you are considering filing for divorce, you might want to handle some estate planning matters before you file the Petition for Divorce.

1. Will.
   If you name your spouse as the beneficiary of your estate and you would rather your money be used for your children and not controlled by your spouse, then you should prepare a new will creating a trust for children and a trustee of your choosing.
2. Life Insurance.
   Change the beneficiary on your life insurance policies. Name the trust created under your will if you have minor children.
3. Powers of Attorney.
   Financial Power of Attorney. If you have given your spouse your financial power of attorney to handle all of your financial affairs in the event of disability, you should prepare new financial power of attorney prior to filing the Petition for Divorce.
4. Georgia Advance Health Care Directive (Health Care Power of Attorney and Living Will). If you have given your spouse your health care power of attorney to handle all of your health care decisions in the event of disability, you should prepare new health care power of attorney prior to filing the Petition for Divorce.
5. Individual Retirement Accounts.
   The beneficiary designation on these accounts cannot be changed without spousal consent, so there is not much you can do with this prior to filing the Petition for Divorce.
6. Revocable Trusts.
   Most people in Georgia do not have revocable trusts (unless you moved here from another state). If you do have a revocable trust, review the document to see if you can change the trustee designation and beneficiary distribution without your spouse’s consent.
7. Shareholder Agreements, Buy/Sell Agreements or Limited Liability Operating Agreements.
   If you are in business with your spouse, these documents should be reviewed to see if the documents will allow for changes without your spouse’s knowledge. If you are an owner in a business with other parties, review the documents for any negative consequences upon the filing of the divorce.

After the divorce has been granted.
If you have not changed the documents listed above prior to the divorce, all of the documents should be reviewed and amended.

1. Individual Retirement Accounts.
   The beneficiary designation should be changed at this time. The Supreme Court has ruled that a former spouse will receive the retirement account if the owner of the account does not change the beneficiary designation after the divorce (even if the divorce decree provides that the former spouse is not entitled to the benefits).Kennedy v. Plan Administrator for Dupont Savings, 2008.
2. Irrevocable Life Insurance Trust.
   If you or your ex-spouse is required to hold life insurance in a large amount, it might be a good idea to consider an irrevocable life insurance trust.