Somewhere in your home, you probably have a folder with your estate planning documents. They likely still have the same names, the same backup choices, and the same signatures from before your divorce.
A divorce doesn’t update those documents for you. Some stop protecting you as soon as your divorce case is filed. Others keep following your old instructions until you sign new ones. At Jimeno & Gray, our estate planning and divorce attorneys help Anne Arundel County clients figure out which documents need attention and when. Contact our law firm today to get the answers you’re looking for.
Key Takeaways:
- If you are getting divorced, you need to update your power of attorney, advanced directive, will, any trusts, and written instructions for final arrangements and guardianship designations.
- When updating powers of attorney, consider naming a sibling, an adult child, or a close friend.
- When updating your will, consider drafting a new will rather than creating multiple supplemental documents to explain modifications. This is often much clearer and will lead to less confusion.
- Do not ignore funeral planning arrangements just in case. This includes joint plots and preferences about burial or cremation. This helps avoid conflicts between your children when the time comes.
- Check on any deeds and titles for any property you own. It’s also worth reviewing your emergency contact info just in case your spouse was listed.
A Checklist of What You Need to Update After Your Divorce
Use this list to keep track of each step. Don’t check an item off until someone confirms the change in writing:
- Your financial power of attorney and advance directive
- Beneficiary forms on every account or policy
- Your will, including the person you name to manage your estate
- Your revocable trust, along with the property held in it
- Written instructions for your funeral or burial
- Your choice of guardian for any child still living at home
If your divorce is still going on, talk to your lawyer before you change beneficiaries or move property.
Consider the Order in Which You Update Your Documents
The order you update your documents matters. Start with the documents your spouse could still use today at a bank or hospital. Then move on to the documents that only take effect after you die.
Many people start with their will. But no one can use your will against you while you are alive and able to make your own decisions. It’s better to protect your money and your medical choices first.
Each item may be handled by a different office, company, or plan administrator, sometimes in another state. Give yourself time to get written confirmation. Otherwise, you may think a change went through when the old form is still in effect.
How to Update Your Will After You Get Divorced
Once your divorce is final, Maryland law removes your former spouse from your will. But the law only removes your ex. It doesn’t fix other parts of your will that depended on your ex.
Read through your will again after the divorce. The backup people you named may be your ex’s relatives. Some gifts may refer to property your ex received in the divorce. Some roles may no longer have anyone named to fill them.
What to Look for When Reviewing Your Will
Go through your signed will page by page. Mark any part that still assumes you are married. Look closely for:
- Gifts of jewelry, heirlooms, or other items that came from your ex’s family
- Gifts to charity that you and your ex planned together
- Language about what happens if you and your spouse die at the same time
- In-laws named as backup personal representative or trustee
- Language that forgives a loan, if the divorce agreement gave that loan to someone else
Should I Draft a New Will or Use a Codicil?
In most cases, it’s better to sign a new will than to add a codicil, which is a document that changes part of an old will. A new will replaces the old one completely. That way, your family doesn’t have to figure out how several documents fit together.
How to Update or Set Up Trusts After You Get Divorced
A trust follows its own written terms. Maryland law may cancel some parts of a revocable trust that name your ex, but it won’t rewrite the trust to fit your new life. For that, you need to change the trust or replace it.
Joint trusts can cause the biggest problems. You and your spouse may have created and funded one trust together. You both may still have the power to cancel it. And your divorce agreement may divide your property without saying anything about the trust that holds it.
Types of Changes You May Need to Make to a Trust
Most trusts need changes after a divorce. The fixes usually fall into four groups. Keep your divorce agreement and your trust in front of you as you work through them:
- Splitting a Joint Revocable Trust: Many couples create a joint trust while they are married, but a divorce doesn’t divide it automatically. Each former spouse should set up their own trust and move into it the property they received in the divorce.
- Removing Your Ex’s Power Over Your Trustee: Many trusts let a spouse remove and replace the trustee. Take away that power so the person managing your children’s money answers only to you.
- Naming a Trust as Your Retirement Account Beneficiary: If you name a trust instead of a young adult, the money can be paid out on a schedule you choose. It can also help keep the money away from your child’s future spouse.
- Moving Property Into the Trust: A trust only controls property that is in its name. Change the names on the accounts and deeds you received in the divorce. Otherwise, the trust may hold nothing at all.
A trust that doesn’t hold the right property won’t warn you. Everyone may think it holds your assets, and no one finds out otherwise until the trust is needed. Making sure each asset is titled in the trust’s name is the step that makes the rest of your plan work.
How to Update Beneficiary Designations After You Get Divorced
Your divorce papers don’t change your beneficiary forms, and Maryland law doesn’t change them for you either. Whoever is named on the form when you die usually gets the money. That makes these short forms more powerful than your will for those accounts.
Many Anne Arundel County families have federal or military benefits because of Fort George G. Meade and the many federal jobs in the Baltimore-Washington area. Federal survivor benefits and federal life insurance follow federal rules, not a Maryland divorce decree.
Do Not Forget These Accounts When Updating Beneficiaries
Look for records on these accounts, and ask for a new beneficiary form for each one:
- Health savings accounts and flexible spending accounts
- Thrift Savings Plan (TSP) accounts for federal workers
- Annuities, including the backup beneficiary line
- Employee stock purchase plans and stock awards from work
- Servicemembers’ Group Life Insurance for military families
Remember to Double-Check Contingent Beneficiaries
Check the backup beneficiary on every form. Naming your ex’s brother or sister as the backup may not make sense anymore. Leaving the line blank often sends the money into your estate, where it goes through probate and creditors may be able to reach it.
How to Update Powers of Attorney After You Get Divorced
Update your health care documents as soon as a divorce is filed. Don’t wait until your case is over. In Maryland, your spouse can lose the right to make medical decisions for you before a judge ever signs a divorce order.
Under Maryland Code, Health-General § 5-602, your spouse generally can’t act as your health care agent once either of you files for divorce or you both sign a separation agreement. There are a few exceptions. If you want your spouse to keep that role, you would need to make that clear.
Who to Appoint Instead of Your Ex
Removing your spouse doesn’t name anyone new. Sign a new advance directive naming someone you trust, such as a sibling, an adult child, or a close friend. Give copies to your doctor’s office and the hospital you usually use.
Update your financial power of attorney at the same time. If your old power of attorney was recorded in the land records for a home sale or purchase, record a cancellation the same way. Then give a copy of your new document to every bank or company that has the old one on file.
How to Update Funeral and Burial Preferences After You Get Divorced
Many people forget about their funeral plans, but these are often the first plans your children have to deal with. A divorce decree doesn’t cancel a prepaid funeral contract, change a cemetery deed, or tell anyone what you want.
Married couples often make funeral and burial plans together. A burial plot may list both spouses. One spouse may be named as the person in charge of arrangements. A funeral home may still have instructions that no one has looked at in years.
Key Items to Review When Making Updates
Contact the funeral home and cemetery directly. Ask for copies of everything they have on file. Then update each of these in writing:
- A prepaid funeral contract that names your ex as the person making arrangements
- A cemetery plot deed or burial rights in both of your names
- Your wishes about cremation, burial, or organ donation
- The person you want to sign for your funeral arrangements
- Any life insurance set up to pay a funeral home directly
It’s just as important to tell the person you’ve chosen. Adult children who learn your wishes for the first time at the funeral home may disagree with each other. A short talk now can help prevent that.
How Guardianship Designations May Affect Custody and Parenting Time
Naming a guardian in your will doesn’t come before your co-parent’s rights. If you die and your ex is alive and able to care for your children, the children will usually go to your ex. The name in your will doesn’t change that.
When the Court May Appoint a Guardian Regardless of the Situation
Under Maryland Code, Estates and Trusts § 13-702, a court can appoint a guardian for an unmarried minor only in certain situations. For example, it may do so if no parent can serve. If a parent is available and objects, the court generally won’t appoint someone else.
Naming a guardian still matters in case both parents die. You may also want to name one person to raise your children and another to manage their money. The person who is best at parenting isn’t always the best at managing money.
Other Documents to Update After You Get Divorced
Property titles and account permissions can cause more problems after a divorce than your estate plan does. If your ex is still listed on a form, they may still be able to sign papers, get into accounts, or receive notices long after your case is over.
In Anne Arundel County, deeds are recorded in the Circuit Court clerk’s land records. Nothing recorded with the County changes on its own.
A List of Additional Documents to Look Up and Update
Some of these updates take a quick phone call. Others require a notary and a new signature. Set aside an afternoon and work through this list:
- Deeds for homes or land you owned together
- Titles for cars, trailers, and boats in both of your names
- Signature cards for safe deposit boxes at your bank
- Legacy contacts on online accounts and recovery settings for password managers
- College savings accounts, including who is listed as the owner
- Emergency contacts and human resources records at your job
Keep a written list of who confirmed each change and when. That can help your family avoid problems later during probate.
How an Attorney Can Help with Life After Your Marriage Ends
The hardest part is making sure all your documents work together. When your documents don’t match, your family may end up fighting about them for years. It takes someone who reads both your divorce agreement and your estate plan to make them fit together.
Jimeno & Gray can help you update your documents so they reflect your life after divorce. We start by looking at what your divorce already changed and what it left the same.
Contact Our Attorneys Today to Take Back Control of Your Future
Do not delay. We can provide answers and guidance through a confusing and potentially overwhelming process. To speak with our attorneys about updating your estate after a divorce and planning ahead, contact our law firm today.