During a divorce there are many financial and legal considerations that can get swooped up into the emotional whirlwind. A living will is one of those important issues that tend to slip through the cracks, but can resurface to cause major problems. A living will is a legal agreement that authorizes a spouse to make medical decisions in the event you become incapable of doing so for yourself. When you were first married you willingly put your complete trust into the hands of your spouse, but now that your marriage is ending do you really want your soon to be ex-wife making the medical decisions that may determine life or death? This is one of those situations where it is better to be safe than sorry.
Your best bet to be certain your wishes are carried out should the unexpected come to pass is to revoke the existing living will and draft a new one. It’s prudent to go a step further and change your living will, last will and all your other estate planning documents before filing for divorce. This includes updating your living will (medical directives) and financial powers of attorney so that someone other than your soon-to-be ex-wife has the power to decide all financial and medical decisions on your behalf should you become incapable of doing so.
Should your separation or divorce drag on for years your spouse would most likely continue to retain the right to make medical and financial decisions in the event of your incapacity. Since a divorce is not settled until the judge issues a final judgment, if you become incapacitated during your divorce proceedings then your living will is still valid—meaning your spouse can make medical decisions for you. After a divorce, these rights do not automatically revert to the person you want in this role unless you have your own living will and/or power of attorney revised. Revoking is a simple process; first write a statement indicating you are revoking the will. Provide a copy for your spouse and her lawyer, and be sure to keep a copy for yourself. After the revocation of your spouse as your legal health surrogate, you must list a new person who will be assigned the power over medical decisions. The earlier the better when it comes to revoking the agreement, in order to prevent any future problems since unforeseen incidents can occur at any time.
Where do you begin?
- Update Powers of Attorney. This may include financial and healthcare powers of attorney. Beware that once divorce proceedings have begun, the ability to change various accounts, name new beneficiaries and/or revise other documents might be prohibited due to an Automatic Temporary Restraining Order (ATRO). An ATRO is often instituted to ensure that both parties’ assets stay the same until they have been divided pursuant to the final divorce decree.Powers of attorney—documents that give someone authority to act for you if it’s ever necessary—are a vital part of an estate plan. You should have two powers of attorney: one for healthcare (medical decisions), and one for financial matters. If you currently have powers of attorney that give your soon to be former spouse authority to make decisions on your behalf, revoke them immediately and draft new documents.
- Update Beneficiaries on Life Insurance Policies. Part and parcel of your medical directives are who will inherit your life insurance should you pass. Odds are if your spouse was granted legal authority over medical decisions than she also is listed as the beneficiary in the event of your untimely death. Many assets pass outside of a will, to beneficiaries named on paperwork provided by a bank or insurance company, and a life insurance policy is usually among those. So be sure to update your beneficiary designations for life insurance policies, don’t assume that your state’s law will automatically revoke earlier designations you made upon filing for a divorce, or even when the divorce judgment is finalized.Policies named as “qualified plans,” such as 401(k)s, pensions, and employer-provided life insurance policies, are governed by a federal law called ERISA (the Employee Retirement Income Security Act). ERISA dictates that a plan administrator is required to pay out funds to the beneficiary named in the plan documents—no matter what state law says. So if your former spouse is still the named beneficiary on your employer provided life insurance, she will inherit unless you update the paperwork to name a new beneficiary.
When you’re in the midst of the emotional and financial turmoil of a divorce, your living will is likely to be the last thing on your mind. But it can have dire and lasting effects and should be made a priority, the sooner the better. If you neglect to update your legal health surrogate and beneficiary designations you are literally leaving your life and some of your assets in your ex-spouses hands.
Your living will is just one of the many crucial issues with legal, financial, parenting and tax implications that must be considered before, during and after a divorce. There are many pressing issues that cause havoc and grim consequences when they are overlooked during the chaos of divorce and the confusion of divorce law. Seeking competent professional assistance, even considering a financial planner with specialized expertise in divorce, can help guide you through decisions and moves that will ensure the best possible outcome for a secure future.