Can I change my estate plan while my divorce is still ongoing?

Q: Can I change my estate plan while my divorce is still ongoing?

-Speculative spouse

A: Dear Speculative:

Updating your estate plan for divorce is essential, but once the divorce is filed with the court, your ability to amend your plan is limited by state law. This is why you should update your plan as soon as divorce is inevitable—and before you file, ideally.

In most states, after a divorce is filed, neither spouse can legally change the beneficiaries to their life insurance policy or 401k without the other’s permission until the divorce is final. Similar restrictions apply to changing your will and trust.

Even if your divorce is already filed, you should either ask your divorce lawyer or meet with us to determine what changes are permissible and make necessary updates. It’s particularly critical to update your power of attorney (POA), including both durable power of attorney and healthcare power of attorney.

If you become incapacitated while the divorce is ongoing and haven’t updated POA, your soon-to-be-ex could gain complete control over your legal, financial, and healthcare decisions. To avoid this, it’s vital to name someone else to make these decisions on your behalf—and do so immediately.

From there, you should review and update your plan again after the divorce is final to adjust it for your new life situation and asset profile.  

Wherever you are in the divorce process, contact a Personal Family Lawyer®, so they can help ensure your plan is properly updated.