Divorce is an overwhelming process no matter the circumstances, and the last thing you want is to add more complications on top of the legal proceedings you already have to deal with. However, especially if you are gearing up for a messy process or bitter battle, it is important to update all of your legal documents, including your will, living will, and estate.
Most people mistakenly believe that when they divorce, their ex-spouse is no longer entitled to their assets. While it’s true that some estate planning powers are automatically revoked after the divorce, if you still have outdated documents including your ex-spouse, he or she will still be the beneficiary of your estate should you pass away. Therefore, it is important to ensure that you have updated all of your legal documents if you are going through a divorce.
Of course, it is best to do so prior to filing for divorce, especially if you foresee the process being particularly time consuming or tense. You are about to enter a legal process with a lot of moving parts and this is one aspect of your case you should not forget about – If you fail to take steps to create a single person trust or designate new beneficiaries on your other assets, your ex-spouse will still receive everything you own… even if you are legally divorced.
Furthermore, if you don’t create an updated power of attorney or living will, your soon-to-be ex-spouse will be the only person with legal permission to make decisions for you if you’re temporarily or permanently incapacitated.
Thus it is critical to update all of your documents, especially if you share a life insurance policy, retirement account, investment, property or joint trust with your spouse.
That being said, Georgia law has strict time frames in which this can be done. In any case, it is best to update all of these documents prior to filing for divorce, because once your case begins, you may not be able to do so. This halt on your ability to revoke your trust or to name new beneficiaries is called an “Automatic Temporary Restraining Order” or a “Standing Order.” This means that if you die at this time, your ex-spouse will be the beneficiary of your estate. However, you can update your will, power of attorney, and living will at this time to minimize their power.
After the divorce, you are, of course, a free person and can update your documents as you wish. If you have not updated everything by this point, you should seek legal counsel in order to do so as soon as possible.
If you have questions about a divorce and will / trust, call us at 770-609-1247 to schedule a consultation with one of our divorce and family law attorneys today.