Estate Planning Issues after Divorce

Published on
December 14, 2021
Written by
Angel Murphy
Estate Planning

Divorce involves many things: complex emotions, property division, child custody agreements, mediation, and so forth. There are so many items to keep in mind. It’s common for people to overlook some things, like estate planning, because they were focusing on others. One issue you shouldn’t overlook, however, is estate planning. Divorce will bring up multiple estate planning issues. You’ll need to resolve these issues and the sooner, the better. Below, we will identify and discuss a few of the estate planning issues involved in post-divorce situations.

Update Your Estate Planning Will: Property, Executorship & Guardianship

What is an Estate Planning Will?

A will is a document that predetermines certain outcomes following a person’s death. Specifically, a will predetermines how an individual’s personal and real property will be distributed, the beneficiaries of certain accounts and policies, the guardian for any minor children, and so forth.

Marital and Separate Property

Importantly, when it comes to property, a will includes a person’s separate property, rather than marital property. And the reason for this is that marital property is “jointly owned.” This means that it is automatically subject to partition following a divorce. In Maryland, this means that marital property is distributed in a “fair and equitable” manner. So, there is really no reason to include marital property in a will. The fate of this property will be determined by a Maryland judge.With regard to separate property, a divorced person should update his or her will to express his or her intentions. Often, a spouse will leave all his or her separate property to the other spouse. Assuming that this is no longer the intention, the will should be updated accordingly. Furthermore, a will also designates an “executor.” This is the person who carries out the responsibilities stated in the will. In most cases, the designated executor would need to be updated accordingly after a divorce.

Estate Planning, Child Custody, and Guardianship

When it comes to child custody, a will can have an impact. This is because the will’s creator can designate a person to serve as a guardian for any minor children. This designated guardian doesn’t automatically gain legal rights with respect to minor children. The other spouse (assuming the other spouse survives the decedent spouse) will automatically gain rights in a default scenario. However, if the surviving spouse is found incapable of caring for any minor children, the designated guardian may gain legal rights. The thing to remember, after a divorce, is a will’s creator may want to change the designated guardian.

Designate New Estate Planning Beneficiaries

Although a will predetermines how certain personal property and holdings will be distributed, it doesn’t predetermine how all personal property and holdings will be distributed. There are certain items that are often left out of a will. For example, retirement accounts, life insurance policies, certain bank accounts, and certain brokerage accounts. These things are often left out of a will and are simply passed on to the owner's designated beneficiary. For these types of property and holdings, the newly divorced individual should update the beneficiary. That is, assuming that the beneficiary will no longer be the other spouse. If you don’t update the beneficiary, this personal property could go to the former spouse when you pass away.

Contact The Murphy Law Firm for More Information

These are just a few of the issues involved when it comes to estate planning after divorce. For more information, contact The Murphy Law Firm by calling 240-493-9116.

Angel Murphy

Personable. Passionate. Persistent.

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