Divorce Estate Planning in Massachusetts

If you’ve been contemplating divorce, now is the time to be pro-active about your estate plan, which can include your will or trust, as well as beneficiary designations on your life insurance, bank accounts, and investments. If you wait until you file for divorce, some aspects will not be able to be modified until your divorce is finalized, and that can take time. Here are the main estate planning documents to update before a divorce in Massachusetts; if you are from another state, check with your attorney to make sure you’ve taken all the steps you need to protect your estate.

Here are four things you can do right now:
1. Change Your Power Of Attorney Documents
It’s unlikely you want your future ex to make your legal, financial, and medical decisions in the event you are incapacitated. Therefore, it is urgent that you update your power of attorney documents as soon as possible. This includes both your durable financial power of attorney and your medical power of attorney (commonly known in Massachusetts as the Health Care Proxy.) Otherwise, if you’ve named your soon to be ex-spouse as your Agent, he or she will have much authority in making decisions for you. If you do not have these documents in place already, it’s time to set them up, clarifying who you would want making these decisions in an emergency
2. Change Your Beneficiary Designations
Updating your beneficiary designations for assets not passing through a will or trust, such as life insurance policies and investment accounts, is a must. As soon as a complaint for divorce is filed in Massachusetts, an automatic restraining order arises on the assets of both parties (see Supplemental Probate & Family Court Rule 411) , which means you won’t be able to make these changes after that time, even if you are not the party who filed the complaint. Speak to your HR Dept and your Financial Advisor to make these changes now.
3. Create a New Will
Any assets you have will be divided upon your death. Consider what family and friends you want to name, and designate them as beneficiaries for any assets you would have previously left to your spouse. Be mindful that it’s not possible under Massachusetts law to completely disinherit a spouse in your will, due to the Massachusetts’ “forced share” statute, (M.G.L. c. 191 § 15) so this is an area where you will want to have legal guidance
4. Amend Your Existing Trust Or Create A New One
Already have a Trust? Review what assets your future ex might receive through the Trust, and consider replacing them as successor trustee. especially to protect assets intended for your minor children. But be aware that even before filing, you may be constricted in making certain changes to a trust, to avoid running afoul of M.G.L c. 191A, which governs fraudulent transactions designed to evade creditors. Don’t have a trust? Now is the time to consider creating one to protect estate assets intended for your minor children to inherit.

Contact Erin Nobles to help get your estate plan ready for your divorce and learn more about what she does here.