Because getting divorced can be overwhelming on so many different levels, updating your estate plan often takes a back seat to other seemingly more-pressing priorities. But failing to update your plan for divorce can have potentially tragic consequences, some of which you may have never considered before.

In fact, this is something your divorce attorney probably won’t think to bring up, but it’s literally one of the most critical matters you need to handle if you’re ending your marriage. Last week, I discussed the first two estate planning changes you must make—updating your power of attorney documents and beneficiary designations—and today we’ll share the remaining three.

3. Create a new will

You should create a new will as soon as you decide to get divorced, because once you file, you may not be able to change your will. Rethink how you want your assets divided upon your death. This most likely means naming new beneficiaries for any assets that you’d previously left to your future ex and his or her family. And unless it’s your wish, you’ll probably no longer want your ex—or any of his or her family—listed as your will’s executor or administrator, either.

California has community-property statutes that entitle your surviving spouse to a certain percentage of the marital estate upon your death, regardless of what’s in your will. This means if you die before the divorce is final, you probably won’t be able to entirely disinherit your surviving spouse through the new will.

However, it’s almost certain you wouldn’t want him or her to get everything. Given this, you should update your will as soon as possible once divorce is inevitable to ensure the proper individuals inherit the remaining percentage of your estate should you pass away while your divorce is still ongoing.

4. Amend your existing trust or create a new one
If you have a revocable trust set up, you’ll want to review and update it, too. Like wills, the laws governing if, when, and how you can alter a trust during a divorce are complex. In addition to reconsidering what assets your ex-spouse should receive through the trust, you’ll probably want to replace him or her as a successor trustee if they are so designated.

And if you don’t have a trust in place, you should seriously consider creating one, especially if you have minor children. Trusts provide a wide range of powers and benefits unavailable through a will, and they’re particularly well-suited for blended families. Given the likelihood that both you and your spouse will eventually get remarried—and perhaps have more children—trusts are an invaluable way to protect and manage the assets you want your children to inherit.

By using a trust, for example, should you die or become incapacitated while your kids are minors, you can name someone of your choosing to serve as successor trustee to manage their money until they reach adulthood, making it impossible for your ex to meddle with their inheritance.

Beyond this key benefit, trusts afford you several other levels of enhanced protection and control not possible with a will. So you should at least discuss creating a trust with an experienced lawyer before ruling out the option entirely.

5. Revisit your plan once your divorce is final
During the divorce process, your main planning concern is limiting your soon-to-be ex’s control over your life and assets should you die or become incapacitated before divorce is final. Given this, the individuals to whom you grant power of attorney, name as trustee, designate to receive your 401k, or add to your estate plan in any other way while the divorce is ongoing are often just temporary.

Once the divorce is final and your marital property has been divided up, you should revisit all your estate planning documents and update them accordingly based on your new asset profile and living situation. From there, your plan should continuously evolve along with your life circumstances, particularly following major life events, such as getting remarried, having additional children, and/or when close family members pass away.

Don’t wait; act now!

Even though divorce can be one of life’s most difficult transitions, it’s vital that you make the time to update your estate plan during this trying time. Meet with a trusted estate planning attorney to review your plan immediately upon realizing that divorce is unavoidable.

Putting off updating your plan, even for a few days, during a divorce can make it legally impossible to change certain parts of your plan, so act immediately. And if you’ve yet to create any estate plan at all, an impending divorce is the perfect time to finally take care of this crucial task.

Dedicated to empowering your family, building your wealth and defining your legacy,

Divorce can be traumatic for the whole family. Even if the process is amicable, it involves many tough decisions, legal hassles, and painful emotions that can drag out over several months, or even years.

That said, while you probably don’t want to add any more items to your to-do list during this trying time, it’s absolutely critical that you review and update your estate plan—not only after the divorce is final, but as soon as possible once you know the split is inevitable.

Even after you file for divorce, your marriage is legally in full effect until your divorce is finalized. That means if you die while the divorce is still ongoing and you haven’t updated your estate plan, your soon-to-be-ex spouse could end up inheriting everything. Maybe even worse, in the event you’re incapacitated before the divorce is final, your ex would be in complete control of your legal, financial, and healthcare decisions.

Given the fact you’re ending the relationship, you probably wouldn’t want him or her having that much control over your life and assets. If that’s the case, you must act, and chances are, your divorce attorney is not thinking about these matters.

While California law limits your ability to completely change your estate plan once your divorce has been filed, the following are a few of the most important updates you should consider making as soon as possible when divorce is on the horizon.

1. Update your power of attorney documents for healthcare, financial, and legal decisions
If you are incapacitated by illness or injury during the divorce, who would you want making life-and-death healthcare decisions on your behalf? In the midst of divorce, chances are you’ll want someone other than your soon-to-be ex making these important decisions for you. If that’s the case, you must act immediately; don’t wait.

Similarly, who would you want managing your finances and making legal decisions for you? Considering the impending split, you’ll most likely want to select another individual, particularly if things are anything less than friendly between the two of you. Again, you must take action if you do not want your spouse making these decisions for you. Don’t wait.

2. Update your beneficiary designations
Failing to update beneficiary designations for assets that do not pass through a will or trust, such as life insurance policies and retirement accounts, is one of the most frequent—and tragic—planning mistakes made by those who get divorced. If you get remarried following your divorce, for example, but haven’t changed your IRA beneficiary designation to name your new spouse, the ex you divorced 10 years ago could end up with your retirement savings upon your death.

That said, once either spouse files divorce papers with the court, neither party can legally amend their beneficiaries without the other’s permission until the divorce is final. Given this, if you’re anticipating a divorce, you may want to consider changing your beneficiaries prior to filing divorce papers. If your divorce is already filed, once the divorce is finalized making these changes should be your number-one planning priority. In fact, put it on your to-do list right now!

Next week, we’ll continue with part two in this series on the critical estate-planning updates you should make when divorce is inevitable.

Dedicated to empowering your family, building your wealth and defining your legacy,

Committing to an amicable divorce means protecting your children from end-of-marriage related trauma. When the marriage ends in a cooperative manner, divorce can be transformed from a contentious event into one that can inspire growth and healing.

But getting the divorce finalized is only the first step. Where the rubber really meets the road is how you navigate your new relationship as a co-parent.  And co-parenting means both parents must put aside any negativity they may have toward one another, so they can place their children’s needs first.

While this may sound simple, it can be challenging. To help you get started, I’ve outlined six steps that are crucial to a collaborative approach to co-parenting.

  1. Establish a “professional” relationship with your co-parent
    Your marriage with your ex may done, but your relationship as co-parents will last a lifetime. Think of your new co-parenting relationship as a business partnership, where your business is raising successful, well-adjusted children. This professional approach can not only help you become a more effective parent, but it also helps prevent unnecessary conflict over personal boundaries and past problems.

For example, if you schedule a time to pick up the kids, treat it like an appointment with a colleague; don’t blow it off or be late. Be as courteous to your co-parent as you would with any business colleague.

  1. Communicate clearly, cordially, and consciously with your co-parent
    Effective communication is paramount to successful co-parenting. This can present a challenge if poor communication was a primary cause of the divorce. By setting a professional tone, however, you may find communication becomes easier, since it’s free from emotional baggage.

    When communicating, make your kids and their healthy adjustment the focal point. Tailor everything you say in terms of shared responsibility, using terms like “we” and “us,” instead of “you” or “me.” Avoid anything judgmental: stick to the facts and how they affect your children’s well-being.

    Never talk down about your ex in front of the kids, and don’t allow your children to be disrespectful toward your co-parent, either. You never want them to feel like they must choose a side.

Finally, don’t use your children as messengers. Speak directly to the co-parent yourself.

  1. Create a comprehensive parenting plan
    Every successful partnership requires planning, so sit down together and come up with a set of mutually agreed-upon guidelines and routines. This is essential for fostering security and predictability to help the children quickly and comfortably adapt to their new situation.

    The more details the plan includes, the better. Try to anticipate potential problems ahead of time. How will holidays, birthdays, and vacations be shared? How will you resolve major disagreements between co-parents? How will new romantic relationships be handled? Be sure to revisit and update the plan regularly as the kids mature.

    Developing such a comprehensive plan with an ex is challenging, so it’s often helpful to have a third-party present for advice and dispute mediation. As your Personal Family Lawyer, we can bring in trusted colleagues in the community who can help you to develop and maintain conscious co-parenting arrangements while we make sure your estate planning reflects your custody wishes.

Next week, I’ll continue with part two in this series, discussing the other 3 key steps to conscious co-parenting.

Dedicated to empowering your family, building your wealth and defining your legacy,

divorce 91024If you are considering a divorce, it’s critical to understand the impact of your divorce on what would happen in the event of your incapacity or death, either during the divorce or after.

Unfortunately, most divorce lawyers don’t give much thought to incapacity or death, primarily because they do not have training on these specific issues and it’s just not at the forefront of their minds when they are advising clients through a divorce.

So, that means you may need to be the one to bring it up.

When you do, here are some things for you to keep in mind:

  1. As soon as you file for divorce, automated “orders” go into effect that will limit what you can do with your assets during the divorce. These are generally called Automatic Temporary Restraining Orders or “ATROs” and they impact how you can change prior estate planning documents and what you can do with future estate planning decisions while your divorce is in progress.Talking with your divorce lawyer about these issues (or making an appointment to meet with your Family Trust Attorney before you file for divorce) is a wise decision.
  2. If you’ve already filed for divorce, you may want to revoke any existing powers of attorney and health care directives giving your soon to be ex-spouse control over your assets and medical decision-making if you were to become incapacitated, as well as execute what we call a “divorce will”, which is a “temporary” Will that would cover the disposition of your assets in the event of your death during your divorce.Again, talk to an attorney about the temporary documents which can be executed while you are in the divorce process, so you don’t suffer any lapses in the valuable protections your estate plan provides.
  3. Be sure to update your “temporary” documents once your divorce is final, and all asset dispositions have been handled, to take into account your new reality.

Going through a divorce can be hard. But there are things you can – and should – do to make things easier for yourself and your loved ones, from an estate planning perspective, before, during, and after the process.

Dedicated to empowering your family, increasing your wealth and building your legacy,
Marc Garlett 91024