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Estate Planning for Divorce: Helping Clients Protect Assets

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By William Vogeler, Esq. on June 25, 2018 2:00 PM

If your client wants to use an estate plan to wipe out a spouse in a divorce, this article is not about that.

This is about what you can do to help your client through divorce with an estate plan -- not a murder plan. Seriously, there are barely survivors in a divorce as it is.

Basically, we are talking about protecting their rights to control assets before it's too late.

Before Divorce

Generally, you want to make changes to the estate plan while divorce terms are still negotiable. Courtesy of Christine Fletcher and Forbes, here's a top eight to-do list:

  • Update the will
  • Amend the trust
  • Update health care proxy
  • Change power of attorney
  • Review any prenuptial or postnuptial agreement
  • Find out what can and cannot be changed, such as 401(k), life insurance, etc.

If you noticed, that's only seven of eight to-do's. That's because the client may be able to bargain while in divorce for estate planning terms, such as life insurance to secure child or spousal support.

Once the divorce if final, however, some things cannot be changed. For example, you cannot change an irrevocable trust with a beneficiary designation.

After Divorce

That's why the final top-eight tip is to revisit the plan after divorce.

Not to divulge any client secrets, but I once had a client who came to me post-divorce with an irrevocable life insurance trust. He really, really, really wanted to revoke it because it left his ex-wife $1 million.

We were not able to do that, but we were able to change the trustee designation. By "we," I mean me, the judge, and an independent fiduciary.

Later, the ex-wife preceded the client in death. So my client ultimately won, but it was literally over his ex-wife's dead body.

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