People going through a divorce often do not want their soon-to-be ex-spouse inheriting their assets such as real estate or bank accounts. While death is a tough topic to think about, divorces should involve some estate planning early on in order to best protect what you own if your not-quite-my ex-spouse outlives you or dies before the divorce is done.
Minnesota Uniform Probate Code, the laws that address what happens with assets when someone dies, says that a divorce creates a situation where your soon-to-be ex-spouse legally is no longer your “surviving spouse” meaning the language in the Will that says what you own goes to your “surviving spouse” no longer applies. Things such as a Financial Power of Attorney and Health Care Directive, otherwise known as a Living Will, are revoked so they are no longer valid. Any beneficiary designations in Wills or Trusts are still valid until a divorce is actually final, however. So, with the exception of beneficiary designations, a person who dies during a divorce has their assets divided in accordance with Minnesota law starting with parents, siblings and other close family members.
Starting a divorce allows people to make a new Will where they can name a new personal administrator of their own choice who is not the soon-to-be ex-spouse. The same holds true to being able to make changes to those who get to make decisions with regard to a person’s Financial Power of Attorney and Health Care Directive. Likewise, a divorce changes the title of real estate such that a spouse’s death does not automatically give the deceased person’s interest to the soon-to-be ex-spouse.
Those with a Will or Trust going through a divorce should discuss with their estate planning attorney how to obtain a copy of the documents that created the Will or Trust so the divorce attorney knows exactly what estate planning was done during the marriage.