What Are Some Things That Divorcing People Should Be Considering Or Divorced People Should Be Considering When It Comes To Their Estate Planning Matters?
I do a lot of divorce work at our office. In the state of Ohio, the laws have so many protections for spouses. Many misconceptions I see are that they have been separated for many years, and they do not believe they owe them anything. In the state of Ohio, if you are married, regardless if you live together or not, the spouse has inheritance laws protections.
Now, if there is an open divorce case, you cannot change your estate planning. I think people that are anticipating a divorce or thinking about a divorce or dissolution are like, “We’re separated, I can just do whatever I want,” which is not valid. If you have a spouse, they have those protections. If there is an open divorce case, legally, you’re still married. So, you can’t just go up and change your estate planning when there is a pending divorce case. If a client does change their estate planning there are laws in Ohio that could possibly trump your estate planning documents.
Can I Change The Selected Guardians For My Children Without My Ex-Spouse’s Permission Once We Are Divorced?
This is a complex answer. If you’re talking about a will and have minor children and have selected guardians for your minor children in your will, your will is your own will. So, suppose you are anticipating a divorce or dissolution, and you decide, “Well, the guardians of my will, I don’t like them anymore, or that’s not a good fit anymore.” In that case, you can update your estate planning when it comes to the guardians because all you’re doing is a nomination in the will. You can nominate or select guardians in a will. But a guardianship of your children, you have to go to probate court for custody. A court has to appoint somebody. So, in your will, you can select or nominate a guardian, but that’s not a court order.
I Think We Gave Each Other A Power Of Attorney. How Can I Revoke That Once We’re Divorced?
If you currently have power of attorney in place and want to change the agent regardless of your spouse or not, you need to write a new power of attorney. If you have your power of attorney forms and give them to the bank or have a healthcare power of attorney, you’re giving them to the physician. You need to update it or revoke that, and you need to make sure whatever company or doctor’s office has that. You need to make sure that they are aware of you revoking it or updating it. I think that’s one of the mistakes that I see with clients is they don’t realize. You need to make sure that everybody’s aware that you’ve revoked it or you’ve updated it or changed it.
It’s a matter of just making another one. You could fill out a form that revokes certain aspects, but I don’t recommend that. I suggest the clients update it so that they can update it to another one if they don’t want that agent. Only by updating it, it revoked the past one. You just got to make sure everybody’s aware of it.
My Spouse And I Already Have Wills, Do I Need A New One Once We’ve Divorced?
If your will is not in line with your wishes, you need to update it. I would suggest probably after a divorce, and you’d probably need a new one because I’m assuming that their spouses gave each other their estate, but since they’re divorced now, that’s probably not what their wishes are. So, if it’s not what their wishes are, we should always update it.
Are There Any Things That My Spouse And I Had Done Together While Creating An Estate Plan That I Cannot Change Once We’re Divorced, At Least Cannot Change Without His Or Her Permission?
You have to review divorce decree and your divorce paperwork. Any divorce I’ve ever done, we’ve never had anything that says they can’t change their estate plan. Some clients have minor children, and there’s a particular asset that the children need to have. An example would be a vehicle. The child is 16 or 17 and can’t legally own that vehicle, but in the divorce paperwork, we put “That vehicle goes to that child when they turn 18.” But we have never put anything in there that you can’t change your estate plan because once you’re divorced, or your marriage is dissolved, you no longer have those spousal protections. So, once you don’t have a marriage anymore, you can do whatever you want to your estate plan, but you have to make sure that you double-check your divorce decree to make sure you’re not changing things that are going to change the agreement.
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