Over 50% of marriages end in divorce and 61% of them involve children under the age of 18. Going through a divorce involves difficult emotions and choices about the most important things in life: your children, your home, and your future. It can be a great relief when the divorce and custody arrangements are finally settled. However, most divorce lawyers don’t give advice about what changes a divorced parent should make to their will. That’s frustrating because most parents have lots of questions about their legal options for naming a legal guardian post-divorce. Although your divorce settlement handles day-to-day custody issues, it’s also essential for you to consider how the divorce impacts your estate plans.
Let’s dig into your most important questions.
Does My Ex Get Full Custody if Something Happens?
The first issue you need to consider is what happens if you die while your children are under age 18. It’s one thing to plan for an untimely death when you’re married, but post-divorce you might feel differently about your ex. Many ex-spouses don’t get along, especially in the first months and years after a divorce. Thankfully, things often settle down as time passes.
Can you stop your ex from gaining full custody of minor children? Most of the time, the answer is no. Courts will typically give the other spouse full custody if you pass away. However, there are some steps you can take to have more control over how your kids are looked after if you pass away.
What Happens to the Will I Made with My Ex?
In some states, there is a presumption that a will is revoked when you divorce. In other states, there is a presumption that all clauses in the will that favor the former spouse are in essence deleted from the will. The courts will then treat the document as if your former spouse passed away before you did. The practical effect of that is that if any clause named an alternate or second beneficiary, that person inherits rather than your ex-spouse. This may be okay with you, but you should not take that for granted. Let’s say your will named your ex-spouse as the beneficiary of a large monetary gift. And let’s say that your will indicates that if the spouse died before you, the gift should go to your in-laws. The courts will not read that provision out of the will, and your ex-in-laws will get the bequest.
What Happens If My Ex is a Bad Influence?
Sometimes there are situations where a former spouse isn’t capable of taking care of the children or being a good influence on their lives. In those situations, if you don’t think your ex should get full custody if you die, you should name an alternative guardian in your will. That does not mean a court will follow your wishes, but you should include information in the will about your reasoning.
Here are some reasons that a court may decide against your former spouse:
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The former spouse has repeatedly ignored the shared parenting agreement and doesn’t visit with the child very often.
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The former spouse is not part of the child’s life at all.
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The former spouse is incarcerated.
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The former spouse has engaged in illegal activity in the presence of your child. (If this is the case, you should consult with a lawyer about your options).
If you name another person as a guardian, state the reasons why he or she would provide a more stable and healthy home for your child.
What Should I Do About My Will If I’m in the Middle of a Divorce?
If you are in the middle of a divorce, your will is still valid. This can be the case even if you filed for a legal separation. Unfortunately, courts do not assume that you would have wanted to revoke your will.
If you are in the middle of a divorce but are technically still married, you need to change your estate plans right away. Start with your last Will and Testament. (If you don’t have a will, you can get one now using FastWill). You can also make changes to your will by adding a codicil. A codicil is a written document that describes the change you want to make to your will. It is typically used to make a will without re-doing the entire document.
You can also make handwritten changes to your will. This is called a “holographic” will and in many states it is legal. At FastWill we don’t recommend using a holographic will in most situations – you can read more about the perils of holographic wills here – but if you’re still sorting things out, handwritten changes are better than leaving things to chance. Just be sure to update your will as soon as possible.
How Can I Provide for My Children After a Divorce?
In addition to updating your will, you should be sure to provide for your minor children. The first step is to change your beneficiary forms. This means looking closely at your retirement plans, property deeds, insurance documents, and medical directives. Remove your ex-spouse as beneficiaries on your retirement plans and insurance documents (provided they aren’t part of your divorce settlements). Aso make sure you change your power of attorney and living will documents to remove your ex.
The second step is to consider whether a trust would be right for your children. A trust is a fiduciary arrangement that allows a third party, known as a “trustee”, to hold assets on behalf of a beneficiary. Trusts usually avoid probate. With a living trust, you can make sure that your assets are managed by a responsible trustee until your children reach the age of your choice, at which point it will be distributed to them. If you already have a trust, be sure to remove your former spouse if they are named as the trustee.
