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Your Illinois estate plan: Before, during and after divorce

On Behalf of | May 15, 2024 | Estate Planning |

When a marriage is falling apart, the first thing on your mind probably isn’t your estate plan – but it is something you’ll have to consider soon.

Not only is it important to address issues of inheritance (particularly if you’re affluent and have a lot of separate assets from your spouse), but you also need to address concerns like who has your powers of attorney and health care proxies. If it’s currently your spouse, that could lead to unintended consequences for you and a lot of personal distress for your loved ones.

Can you update your estate plan before or during the divorce?

Generally, you want to obtain informed legal guidance about your estate plan as soon as you believe a divorce is likely to happen. That way, you can update your beneficiary designations and other documents right away. If your spouse is named as the executor of your estate, which is not uncommon, that’s also something you may wish to change.

Once either you or your spouse file for divorce, your options are more limited. Typically, temporary orders are put in place that don’t permit either spouse to make any major changes to the beneficiaries on their accounts or executor designations until the terms of the divorce have been negotiated and made final. This is to preserve the “status quo” of the marriage until all major issues can be addressed.

The exception to this rule involves any designations you have made regarding your powers of attorney or health care proxy. Those can (and should) be updated as soon as you no longer want your spouse to hold that authority on your behalf, and there is no prohibition against it even while a divorce is pending.

What happens to your estate plan after the divorce is final?

Under the Illinois Probate Act, the provisions of your will regarding your ex-spouse do not automatically get revoked by your final divorce decree. The only thing that changes is that your spouse will no longer be granted executor powers or have any control over the asset distributions of the estate. If you named an alternative executor, that would be the person who will be tapped for the job, or the court will have to appoint a personal representative over your estate.

However, your ex-spouse will remain a beneficiary or designated agent on all other documents until you change them, so that makes it important to immediately review any:

  • Life insurance policy beneficiary designations
  • Trust that can be modified
  • Pension and annuity beneficiaries
  • Bank account and investment beneficiaries 

Powers of attorney and health care proxies (unless already changed) would also need to be updated. 

What if you were blindsided by the divorce?

Sometimes, people don’t have any clue that their spouse wants out – and that’s often deliberate on the spouse’s part. When you’re going through a divorce, the number of things that demand your attention can feel overwhelming. Regardless of the stage of divorce you are in, it’s always easier to proceed with informed legal guidance.