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The importance of altering an estate plan post-divorce

New Yorkers who are creating or have already created an estate plan will undoubtedly believe that the document is sound for the future even if minor tweaks need to be made. However, when there are major life changes, such as a divorce, the entire estate plan could be affected. When a married person is drafting estate planning documents and that marriage ends in divorce, making changes to the estate plan is imperative for the future of the entire family.

Many people have a health care proxy that names their spouse as the decision maker should they become incapacitated. If they divorce their spouse, the testator might not be comfortable with that situation remaining the same. A power of attorney is another aspect of the estate plan that should be adjusted with divorce. A durable power of attorney grants the spouse access to the testator's portfolio while they are competent. Once the divorce is underway or completed, this, too, should be changed, particularly in contentious cases.

Updating the will can be critical. For some, that means creating an entirely new will and tearing up the old one. For others, it is a simple matter of making various changes, such as removing a former spouse as the will's executor. For property that belonged to the testator before the marriage and is not marital property but was left to the former spouse in the will, changing how those items are allocated after death should be done.

For couples that have a prenuptial or postnuptial agreement, it could affect the changes the testator wants to make. Knowing what the spouse is entitled to regarding that document can be a guideline on how to change the estate plan. For those who have created trusts, they should be altered.

Whether the divorce is ongoing or has been finalized, the estate plan should be assessed to see if there are changes that must be made. Having legal assistance from an experienced estate planning attorney can help you move forward when there is a divorce underway.

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