Protecting Yourself and Your Property Before, During and After Divorce with a Properly Prepared Estate Plan

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1 Protecting Yourself and Your Property Before, During and After Divorce with a Properly Prepared Estate Plan by Leanna Hamill, Attorney at Law

2 Introduction If you are contemplating divorce or separation, you need more than just a divorce attorney to protect your interests. You also need to make sure that you have the appropriate estate planning documents in place so that the right person is taking care of you in an emergency. This workbook outlines some of the documents you need that will ensure that medical and financial decisions are made by someone you trust if you are incapacitated. Because your spouse is generally considered your next of kin in the absence of any legal documents which state otherwise, your spouse may be the one who is given the power to make decisions about your health and finances in the event of your incapacity. While this may have been OK with you when you were happily married, it may be the last thing you want when you are contemplating separation or divorce. If you had an attorney who drafted an estate plan for you and your spouse, you should seek assistance from a different attorney when making these changes. The attorney who represented you and your spouse together will not generally be able to represent you in removing your spouse from your estate planning documents.

3 It is a good idea to meet with an estate planning attorney before filing for divorce, or in the early stages, so that a new Health Care Proxy and Power of Attorney document can be drafted. You should also have your attorney review any trusts you have to see what changes might need to be made. Sometimes in a divorce, the Court may direct one or both of the parties to set up a trust for the minor children to provide for college expenses or other needs. You should check in with your new estate planning attorney at this point to make sure that the language being proposed in the divorce agreement is clear enough to allow for the appropriate drafting of the trust later. Towards the end of your divorce, when you have a better idea of how your property will be distributed, you should meet again with your estate planning attorney to finalize any changes to your documents, and arrange for the best time to sign them after the divorce proceedings are over. If you have minor children there are additional considerations such as naming guardians in the event both parents pass away, who will handle any property you leave to your minor children, and making arrangements for children with special needs.

4 Before or During The Divorce 1. Health Care Proxy: Your health care proxy is the document that gives someone else the power to make health care decisions for you in the event you are unable to make them yourself. Without a signed HCP, your doctors may turn to your spouse to make those decisions, even if you are contemplating divorce. If you have a HCP, you may wish to change it to name someone other than your spouse. Who is listed as your current health care proxy? Who is the alternate? Note any changes you want to make to your health care proxy: HIPAA Release: The HIPAA release is a form that gives medical providers and health insurers permission to share information about you with the person you appoint. You may have signed a HIPAA release naming your spouse at your doctor s office, when you signed your current estate plan, or you may have given permission to your health insurer to share information about your claims and records with your spouse. Who currently has permission to obtain medical information about you? Who has permission to share this information? Note any changes you want to make to your HIPAA release: After you have signed a new health care proxy and HIPAA release, be sure to notify anyone who had been listed as your health care proxy that they are no longer appointed. Also send copies of the new documents to any doctors you see on a regular basis, any hospitals that have a copy of the old document and your health insurer. It is also a good idea to keep a copies in your glove compartment. Changed Health Care Proxy & HIPAA Notified Former Agent Notified New Agent Notified Medical Providers Notified Health Insurance

5 2. Durable Power of Attorney: This is the document that allows the person you appoint to manage your finances and property if you are unable. A power of attorney document may also nominate someone as a guardian for you if you become incapacitated. Without a durable power of attorney in place, a guardian or conservator would need to be appointed for you in the event of your incapacity. If you are contemplating divorce, you may not want your spouse to serve in that role. Who is listed as your agent under your durable power of attorney? Note any changes you would like to make on your durable power of attorney: If you do not have a durable power of attorney, who would you like to appoint? Who would you like to appoint as an alternate? After you have signed a new power of attorney, be sure to notify anyone who had been listed as your agent that they are no longer appointed. Also send copies of the new document to any banks or financial institutions that may have a copy of the old document. Changed Power of Attorney Notified Former Agent Notified Financial Institutions 3. Will: Note: You are not allowed to change your Will or the beneficiary of any life insurance or retirement policies after the divorce has been filed. However, you can begin thinking about how you would want your property distributed after your divorce. Note those changes here for discussion with your estate planning attorney:

6 After Your Divorce Your divorce attorney and estate planning attorney can coordinate to determine the best timing for the signing of your new estate planning documents. 1. Will: First, list any property that you own in your name alone that does not have a beneficiary listed. Think about real estate, bank accounts, automobiles. This is the property that will pass through your Will: What does your current Will say will happen to this property? Is this still how you want your property to pass now that you have divorced? Note any changes you would like to make in the space below. Note: Check with your divorce attorney about when you can and should change your Will. This will depend on the type of divorce. Who is listed as the executor of your Will? Note any changes you want to make to the executor, and be sure to list an alternate. _

7 2. Trust: Is your former spouse listed as the trustee of your trust, or as a beneficiary? If you have provisions for your minor children in the trust, do you want their other parent to be in charge of the money, or do you want to appoint someone else to handle the funds for your children s benefit? Note any changes below that you want to make to your trust. 3. Life Insurance: Your divorce does not automatically change the beneficiary on your life insurance. You must do this yourself after you have been given clearance by the Court. List your life insurance policies below, and then note the date that you changed the beneficiary and who you changed it to. Note: Check with your divorce attorney about when you can and should change your Life Insurance. This will depend on the type of divorce.

8 4. Retirement Accounts: Your divorce does not automatically change the beneficiary on your retirement accounts. You must do this yourself after you have been given clearance by the Court. List your retirement accounts below, and then note the date that you changed the beneficiary and who you changed it to. Note: Check with your divorce attorney about when you can and should change your Retirement Accounts. This will depend on the type of divorce. You should always retain the services of an attorney before making any changes to your estate plan.