If you’re planning to divorce and you already have an estate plan (even if it’s just a will), you will likely need to make some modifications to it. How extensive those modifications need to be depends largely on how many estate plan documents you have and how complex your estate is.
Determining the timing of these changes can be just as crucial as deciding what changes you need to make. Some can be made at any time. Others need to wait until the divorce is final.
Every situation is different, so it’s wise to get sound estate planning guidance as soon as possible when you know divorce is in your future. Here we’ll look at a few common estate plan questions and concerns that divorcing people have.
Can you disinherit your soon-to-be ex, and, if so, when?
Under Kentucky law, you can’t completely disinherit someone to whom you’re still legally married unless they’ve agreed to that in a prenuptial or postnuptial agreement. Otherwise, a current or surviving spouse is entitled to take an “elective share” even if they’re not included in the estate plan if their spouse passes away while they’re still legally married.
Can you disinherit them once the divorce is final?
That’s actually not necessary because under Kentucky law, divorce “revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise.”
That means if your spouse is your executor, health care agent or has any other administrative responsibility for your estate, you’ll need to appoint someone else or reappoint them if you still want them to have that authority.
You typically don’t have to wait for the divorce to be final to name someone else to these positions, as they aren’t generally required to be held by the spouse. It’s smart to review each of them, however, and decide what’s best for you.
Will the terms of the divorce affect your estate plan?
Some of them might. That’s why it’s a good idea to review your final divorce agreements with your estate planning professional to ensure that any necessary provisions are included in your estate plan.