Divorce and Estate Planning

There are a variety of factors to consider when you get divorced. Although the number of items to take care of can feel overwhelming, some are more important than others. Consider this, if something were to happen to you today the person who would most likely make health care decisions for you is the same person that you are divorcing. Frightening thought. In order to avoid this reality, it is crucial to revisit your Estate Plan when you file for divorce.
Your Estate Plan refers to what you want to have happen to your person, your assets and your children when you cannot make those decisions for yourself, or when you are no longer here. These decisions will be carried out through the Trustee of your Living Trust; the Executor of your Will; the Agent of your Health Care Directive and the Agent of your Power of Attorney. For married couples the most common designation of Trustee, Executor and Agent is their spouse.
While the law is smart enough to automatically revoke the appointment of your spouse as your Power of Attorney, Health Care Agent, Trustee and Executor upon divorce, the filing for separation does not have the same effect. That is why it is critical to revoke any previous determinations and memorialize any of your new wishes as soon as you file for divorce.
Here are some of the questions to think about:

  • Do you have children?
  • Who will your things automatically go to if you don’t take care of your Estate?
  • Who do you want your things to go to?


  • What assets do you have now?
  • What assets will you have when your divorce is final?
  • How difficult will it be for your loved ones to access your assets?


  • What will your custody agreement look like?
  • Will your ex-spouse automatically receive custody of your kids if you are gone or incapacitated?
  • Who will take care of your children if both you and your ex-spouse are gone?
  • Will the guardian for your children be able to financially support your children?


  • Who can you count on to make decisions about your health?
  • Will that person know what your wishes are?


  • Who can you trust with your assets?
  • Will that person know what your wishes are?

These are just some of the questions you will want to ask yourself when you divorce, but like many situations it’s just the tip of the iceberg. You should consult an experienced attorney that can help walk you through these issues.

Brian Chew, the managing partner of OC Wills & Trust Attorneys, has extensive experience in the areas of estate planning, asset protection planning, business succession planning, long-term care planning, and veterans’ benefits. By devoting his practice to estate planning matters, he has founded a firm that strives to provide exceptional service to their clients by working closely with individuals and their families to create comprehensive and customized estate plans. For the past twenty five years, Brian has served thousands of clients in the matters of estate planning, wills and trusts. If you have any questions about this article, you can reach Brian Chew here.