If you are in the process of divorce, you have a lot on your plate. Division of assets, child custody, and the back-and-forth that goes with it can be tedious and painful. But there is another issue that should not be left out: your estate plan. Failure to update your estate plan after a divorce can result in some costly consequences.
If you die without a Will after the divorce is final, your former spouse will not
receive any of your estate assets. However, your probate assets will instead pass to
your heirs based on Minnesota's intestate succession laws. Intestate succession may then shift your assets to family members you had not planned on giving to. This is another reason why having a Will is so important.
If you have a Will and you die after your divorce is finalized but you had not changed the beneficiary designations in your Will, fortunately, Minnesota law fully and automatically revokes any provisions in favor of your former spouse. However, if you die before the court has issued the final divorce decree, your spouse still receives benefit from your estate, as you would still be legally married. Note that if you change your beneficiary designation and disinherit your estranged spouse, and you die before the divorce is final, your spouse will still be entitled to the spousal elective share.
Minnesota law also
revokes any appointment of an ex-spouse as personal representative. However,
until the divorce is final, that revocation of the spouse as personal
representative is not automatic--you must affirmatively change that in your
Will. If you are in the process of divorce, it may be wise to update your Will
and nominate a new personal representative.
Here's the trap to watch out for: Divorce does not automatically revoke a former spouse as a designated beneficiary of your payable-on-death (POD) accounts, such as life insurance policies, annuities, retirement accounts, etc. You should change those designations as soon as possible. However, you will likely be prohibited from changing those designations until after the divorce is finalized.
Any power of attorney or health care directive you have executed that grants powers to your spouse as an agent is automatically revoked upon the commencement of divorce proceedings. You should execute new power of attorney and health care directives as soon as you or your spouse has filed for divorce.
If you are contemplating divorce or are in the process of it, or your divorce has been finalized, now is the time to revisit your estate planning documents. A qualified estate planning attorney can help you get started.