Most divorce attorneys forget to mention that in addition to figuring out property division, maintenance, child support, and child custody, you should also be considering your estate planning during a divorce. If you do not have any estate planning in place, the law grants your spouse certain rights even though you have already filed for divorce. If you do have estate planning in place, you may want to revise your documents to remove your spouse from them.
What happens if I do not have a Will or Powers of Attorney for Health Care or Property?
Even if you have already filed for divorce, the Illinois Probate Act provides that your spouse has certain rights if you become incapacitated or in the event of your death before your divorce is finalized. For example, if you became incapacitated, the Probate Act provides that your spouse is the person who would be appointed your Health Care Surrogate, which means your soon to be ex-husband or ex-wife will be the person making all of the important decisions regarding your health and medical treatment. To prevent this from happening, you should immediately prepare a Power of Attorney for Health Care that will name a person of your choice to act as your agent to make all decisions about your medical care if you become incapacitated. Likewise, the Probate Act provides that your spouse would be appointed to be your Power of Attorney for Property, which means that your spouse would be managing your financial affairs and your property. To prevent this from happening, you should immediately prepare a Power of Attorney for Property that will name a person of your choice to manage all of financial affairs and property if you become incapacitated.
If you do not already have a valid Will, the Probate Act awards your spouse a certain portion of your estate in the event of your death. If you do not have any children, your spouse will receive your entire estate. If you have children, your spouse will receive ½ of your estate and your children will receive the other ½ of your estate in equal shares. It is also important to note that without a Will, your estate will go through probate (the process in which a court oversees the division of your property in the event of your death) before anyone will receive your property. If you prepare a Will, you can choose who will receive your property. However, even if you choose to not include your spouse in your Will, you should note that the Probate Act provides that your spouse is entitled to 1/3 of your estate until your divorce is finalized.
What happens if I already have estate planning documents?
If you already have estate planning documents in place, you probably want to update your documents. It is likely your spouse is named as your Power of Attorney for Health Care and your Power of Attorney for Property. You can update these documents to name a new person of your choice. It is also likely that your Will leaves a considerable amount or all of your estate to your spouse. You can also update your Will to reduce the spouse’s share of your estate; however, the Probate Act provides that your spouse is entitled to 1/3 of your estate regardless of the provisions of your Will until your divorce is finalized.
In addition to preparing or updating your estate planning documents, if you have accounts that designate beneficiaries, such as life insurance accounts, you may want to change your beneficiaries. However, some retirement accounts require spousal consent in order to name someone other than your spouse as the primary beneficiary.
If you are going through a divorce, it is important to contact an estate planning attorney to make sure you have people who you trust named as Powers of Attorney for Health Care and for Property. An estate planning attorney can also help you set up an estate plan that makes sure your assets are distributed to the people you want to receive your estate in the event of your death.