2 important estate planning considerations as you divorce

2 important estate planning considerations as you divorce

On Behalf of | Nov 15, 2022 | Estate Planning |

If you’re planning to divorce, you’ll also want to think about the necessary modifications to your estate plan. You likely don’t want to wait until the final divorce decree is signed to begin putting these in place. However, you don’t want to jump the gun either. 

There are some changes you can (and likely want to) make as soon as possible. Others need to wait until you’re no longer legally wed. Let’s look at two examples.

Do you want your spouse to continue as your health care representative?

Likely, your spouse is your designated health care representative (also known as health care agent). Even if you didn’t officially designate them to be, under Pennsylvania law, spouses are the first in line for doctors to consult if a patient is unable to make their own treatment decisions. That’s unless you’ve designated someone else to have that authority through a health care power of attorney (POA) as part of your health care advance directive.

Once your divorce process has begun, however, the law states that spouses are disqualified from acting in this capacity unless they’ve officially designated to do so. That means if you still prefer your soon-to-be ex to have that authority, you need to put the proper documentation in place.

Having a trusted healthcare agent doesn’t take the place of having a thorough healthcare advance directive. This can help ensure that your representative and your doctors know your wishes for things like life-prolonging measures.

You can’t disinherit your spouse – at least not yet

Under Pennsylvania law, surviving spouses are entitled to an “elective share” of their spouse’s property. You can’t just erase them from your will, trusts and beneficiary designations while you’re still legally married. 

It’s typically best not to make any decisions regarding what kind of inheritance you still want to leave your soon-to-be ex until after the property division and other divorce agreements are finalized. Then you’ll know which assets each of you has.

It’s a lot to think about at a time when emotions are likely running high. That’s just one reason why it’s wise to have sound legal guidance.