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Thoroughness Required in Post Divorce Planning
Jan L . Warner & Jan Collins

Question: My wife and I separated six months ago and began the divorce process through the court system. We have reached a temporary settlement concerning child support, use of the house, etc. I was restrained from disposing of any assets – meaning that I can’t get rid of anything until the case is decided. I am a salesman who travels quite a bit, and I’ve been concerned about what will happen to my estate if I have an accident and become disabled, or if I die suddenly. My lawyer tells me not to worry because my wife will have nothing to do or say about my estate if I die, or about my health care if I become ill. Should I seek other advice?

Answer: Absolutely! Although this type of planning should not preoccupy anyone, life changes occasioned by separation, divorce, marriage, death of a spouse, remarriage, and retirement are prime indicators that folks need to review – and probably change – their wills, health care powers of attorney, and durable financial powers of attorney.

Most states have laws that prevent divorced spouses – and, to varying degrees, estranged spouses from whom a final separation has been granted -- from inheriting. But it may be another story if a disabled spouse needs health care or financial decisions made.

If you don’t sign an updated health care power of attorney, there could be litigation in the probate court about who will make health care decisions for you should you be unable to participate in the decision-making process. Therefore, we suggest that you appoint a trusted relative (parent or sibling) or friend to make these decisions.

Likewise, if you don’t sign a durable financial power of attorney and appoint a trusted agent to handle your finances should you be physically or mentally incapable of doing so, litigation to take control of your resources may ensue. If you do not have a trusted family member or friend, consider a corporate fiduciary, such as a trust company, that would take over based on certain circumstances.

Your will should also be changed. Talk to an attorney who can both interpret the law of your state and help you maximize the amount that would go to your children rather than to your estranged wife -- assuming she could inherit. Issues such as who will serve as trustee for your children should you die are also extremely important considerations. In these situations, you may choose a corporate fiduciary or a member of your family to act in this capacity rather than your estranged spouse – unless you and she still have a good relationship.

And make sure to look at the beneficiary designations of your life insurance, pension, profit-sharing plan, 401(k), and IRA’s. You probably will not be able to remove your wife from some of these accounts because of ERISA rules, but unless you are restrained by the court from doing so, you should be able to change the beneficiaries of your IRA’s and life insurance to a trust for your children’s welfare. And remember that even if you die or become disabled, your estranged spouse may well be able to continue the litigation to receive her equitable division or community spouse portion of your assets. Therefore, your will and durable power of attorney should be prepared in a manner that will cover this contingency.

Bottom Line: A lot of planning should be done at divorce that, unfortunately, is ignored because of advice from attorneys who do not practice in the planning area. We suggest that you contact an attorney who will put you on the right track.

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Today, more than 36 million Americans are age 65 or over. There are more than 22 million family-member caregivers. Then there are the Baby Boomers. All are grappling with the major decisions that accompany the latter stages of life. This book is for them. Written by two experts with decades of experience between them, it is a comprehensive guide that instructs readers about how to create a plan to deal with all aspects of aging, helps maximize options and ensure wishes are carried out.

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