Often clients ask when estate documents can be modified during a divorce. You should consider changing everything immediately.

There are essential documents that everyone needs in his/her estate plan to be prepared to address death, incapacity and serious illness.  These documents include a will, a financial power of attorney and a healthcare directive (healthcare power of attorney)/living will.

The traditional estate plan for a married couple will provide for the majority of the assets to pass to the surviving spouse.  This may be done by outright disposition, with beneficiary designations, TOD (transfer on death) or POD (pay on death) designations, or through joint ownership.  Typically, in the event one spouse becomes incapacitated, each spouse will name the other spouse as the decision maker for financial and healthcare issues.  Once you are separated and/or in the divorce process many people no longer want their estranged spouse to be named to control financial or healthcare decisions, and may not want to make any provisions for testamentary gifts.  In addition, beneficiary designations on life insurance and retirement accounts should also be reviewed, and possibly changed.

It is important to discuss these issues with your divorce attorney to ensure that your estranged spouse will not inherit your entire estate or be able to make major legal and medical decisions on your behalf.

An estate attorney will draft new estate documents taking the divorce and all of your circumstances into consideration in your new estate plan.  It is imperative that these new documents are created should you die or become incapacitated during the divorce process.