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Divorce is a stressful process. Between worrying about the well-being of your children, your financial future, and grieving the loss of the marriage you hoped to have, there's not a lot of energy left over for anything else. But there is one more legal detail you should attend to: your estate plan.
Ideally, you won't think about your estate plan in the middle of your divorce; you'll think about it at the beginning. If you're like most people, your current will and/or trust leave everything to your spouse. If you're divorcing, chances are that's no longer your preference.
Minnesota law does invalidate bequests to a former spouse in a will as well as the appointment of the former spouse as executor, unless the will specifically provides otherwise. However, it's unwise to rely upon state law to keep your property out of your ex-spouse's hands. You should revise your estate planning documents so there is absolutely no confusion and no grounds upon which your former spouse could try to claim a part of your estate. Any such claim, even if ultimately defeated, will deplete the assets you leave behind, since your executor or heirs would have to contest it.
Also, if you have a trust, the trust document is the "private law" of that trust. If you don't want your ex-spouse administering, or having access to, assets from your trust, you must amend your trust document to reflect that.
So why should you think about these prospects early in the divorce process? Because of the unlikely, but real, possibility that you will die during the divorce process. If that happens, the law will not recognize that your spouse was about to become your former spouse. They will be treated as just what they were—your legal spouse, with all the inheritance rights that accompany that status.
If that's not enough to motivate you, consider the fact that if you have granted your spouse medical power of attorney, they will have authority to make medical decisions for you in the event you're incapacitated (like by a severe car accident), in need of medical care, and can't communicate your wishes for care. If you want your estranged spouse to be the person making life-or-death decisions on your behalf, feel free to ignore your estate planning.
There are a number of things to think about when you're amending your estate plan. First and foremost is to remove any suggestion that you want your former spouse to inherit from you or to have any decision-making power over you or your estate. You should also include a provision in your will specifying your wishes for guardianship of your children. Depending on the custody arrangement you and your ex-spouse have in place, the children may go to live with your former spouse. If, however, your former spouse predeceases you, or is unfit to have custody for some reason, your wishes for guardianship will carry greater weight.
Learn more about protecting your family with estate planning, especially if you have small children. If you'd like to learn more about estate planning before, during, and after divorce, we invite you to contact us at Mundahl Law. We look forward to working with you.