“Ask Your Attorney” Column

My Wife And I Are Separated And May Be Headed Toward Divorce. Do I Wait Until It’s Over To Make Changes To My Estate Plan?

Dear Counselor: My wife and I are now separated and living apart. We agreed on dividing our property, and may go ahead and get a divorce, but I don’t know how long that may take. Should I wait to make a new Will until the divorce is final ?

Dear Client: We definitely believe that both spouses should change and update their Wills and estate planning documents after a divorce, as well as after any remarriage. But we also believe that the need to make changes to your estate planning documents is an often overlooked, but important part of the divorce process itself. For example, upon separation, you should consider signing an interim Will to attempt to ensure that your entire estate would not pass to your estranged spouse. And, you should also revise any durable powers of attorney so that should you become incapacitated, the responsibility for your care and money will be in the hands of someone you trust. Unless there is a court order telling you differently, you should also consider changing beneficiaries on insurance policies, and other accounts, such as any IRA you might have. If you have children, your estate can be structured so that you can provide for them using a trust agreement that names someone other than your spouse or “ex” to hold and administer the money for the benefit of your children. And, you may want to include a provision in your Will to make your wishes known as far as who would be a suitable guardian for your kids. Although there is no guarantee that your appointment of a guardian will be followed (especially when there is a surviving parent), if you don’t say anything, the Court will make a decision for you without ever knowing what your wishes are. As you can see, you are in the midst of a transition in your life that requires proper planning to see you through it. You need to spend time thinking through the issues and planning for them. When you are ready, come on in and we’ll discuss further.

John L. Maier, Jr.
Marcus Weden

Sweet & Maier, S.C., Attorneys
114 N. Church St.
Elkhorn, WI 53121