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Estate Planning During Separation or Divorce

Edge Magazine

If you’ve made the decision to separate from or divorce your spouse, there are many things that you need to address, and estate planning needs to be one of your priorities. You shouldn’t wait until the court enters a final decree before you engage an estate planning attorney to help you put a plan in place or, if you already have a plan, help you make necessary changes.

While most states, including Nebraska, have statutes removing an ex-spouse from certain roles in your estate plan, the removal is not effective until the divorce decree is final. However, once you separate or file for divorce, you’ve likely made the decision that your spouse is no longer the person you prefer to manage your assets or make health care decisions for you if you cannot do so yourself. Do your documents reflect your feelings about these important issues? Here are some estate planning related items you should be considering:

Management of Assets for Yourself. If you become incapacitated, the agent named in your durable power of attorney or the successor trustee named in your trust agreement will manage your assets on your behalf. Is your spouse named as your agent or your successor trustee?

Management of Assets for Your Children. If you pass away before your children are adults and you leave assets to them, someone will need to manage those assets. If you have a trust in place, the person you’ve named as the successor trustee will perform this job. If you die without a will or a trust, then the court will entrust a conservator with administering the assets for your children’s benefit. While the surviving parent will likely become your children’s sole guardian, would you prefer to designate someone else to make decisions about how your money is managed and spent for your children?

Authority for Your Health Care. If you cannot communicate with your health care professionals, or if you are in an end-of-life situation, the agent you’ve named in your health care power of attorney may make health-related decisions for you. If your spouse is named as your agent, is he or she still well-suited to make these decisions on your behalf?

In order to ease some of the emotional burden associated with a divorce, you should work with an attorney who is experienced in estate planning to assure your documents reflect your changed objectives.

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