If you’re heading toward divorce – even if you haven’t begun the legal process yet – it’s not too early to review your estate plan. You’ll likely need to make multiple changes, but state law makes some changes automatically.
Each estate plan is unique, so it’s wise to consult with an estate planning professional as early as possible. Here we’ll discuss a couple of key questions that many divorcing spouses have.
Can I disinherit my spouse – and if so, when?
The law automatically disinherits a spouse once the marriage is legally ended. Minnesota law states that the “dissolution or annulment of a marriage” revokes any revocable beneficiary designation to an individual’s former spouse or any “members of the former spouse’s family who are not also members of the individual’s family.”
The law treats those beneficiaries as if they had predeceased you. That means if you have contingent beneficiaries named who aren’t part of your spouse’s family, they inherit those assets if you don’t make any changes to your plan when the divorce is final.
You can remove your spouse and/or in-laws before the divorce is final. However, unless your spouse gave up their inheritance rights in a valid prenuptial or postnuptial agreement, they could claim an “elective share” of your estate if you died before the divorce was final.
The law applies only to wills and other official estate plan documents, but not to any beneficiary designations you made elsewhere, such as on investment and retirement accounts. You must change those if you want to remove your spouse before or after the divorce.
Can I revoke my spouse’s fiduciary responsibilities?
If you’re like many people, you named your spouse as your personal representative (executor) and maybe your health care agent. You likely gave them power of attorney (POA) over medical and financial decisions if you were to become incapacitated.
State law automatically revokes those designations and other key fiduciary responsibilities from your spouse and in-laws with the divorce. However, you should be able to remove them any time before the divorce (or even without a divorce).
Note that if you choose to keep your former spouse and in-laws in your estate plan after you are no longer legally married, you can. However, you need to revise your plan to state that.
The best way to ensure that your estate plan continues to reflect your wishes during and after divorce is to get experienced legal guidance as early as possible.