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Estate Planning Upon Divorce

On Behalf of | Jan 10, 2019 | Wills, Trusts, Estate Planning and Administration

Getting divorced has a significant impact on your life and there are many factors that need to be considered. Of course, couples need to determine the division of assets and possibly immediate child issues such as custody, visitation, and support but another very important action to take is to create, or update, their estate plan.

If you have estate planning documents that name your former spouse as your Power of Attorney, your Executor, or your Trustee, you will want to update your estate planning documents to remove him from those positions. You will also want to remove him as a beneficiary of your Will or your Trust. Although some states have statutes stating that a divorce or annulment of a marriage revokes any disposition of property given to that spouse as a beneficiary and/or their appointment as an Executor or Trustee, it is a good idea to change your estate plan anyway. New Hampshire’s statute for automatic revocation of a former spouse in Wills and Trusts is NH RSA 551:13 and for Power of Attorney is NH RSA 564-E:110.

You want to revise your estate plan in the instance of divorce to make sure that your assets will go to who you want them to go to upon your death. If you leave your old estate plan the way it is upon your divorce, under New Hampshire law, your former spouse will not receive your assets, but that doesn’t mean your assets will go to those you want. Your former spouse will be treated as if he predeceased you, and none of his children (so long as they are not also your children), will receive any of your assets either, unless you revise your Will or Trust to specifically say you want them to get something. Many people love their step-children and still maintain relationships with them even after their marriage has dissolved, so many people still want to give their step-children part of their estate. If you don’t revise your estate plan to state that you want them to have something, this may not happen. Also you may have had a Will when you were married, yet now, having a Trust may be a better option because it would prevent others, including your ex-spouse, from being able to view everything about your estate through a probate proceeding for administration of your estate, which is public information.

If you never had an estate plan to begin with, now is the time to do it, particularly if you have minor children. In your Will, you can designate, or suggest, a person you would want to act as your child’s Guardian in the even that both you and your former spouse pass away before your child turns 18. The Probate Court will take your suggestion into consideration in determining what it thinks would be in the best interest of your child. It is also good to do an estate plan to make sure there will be somebody there to help you when you need it, whether something happens to you and you are mentally incapacitated, or if you die; you can be assured that there will be somebody there to help you with whatever needs to be done, especially since you don’t have a spouse to claim that responsibility.

In all instances, it is better to have an estate plan than not, but remember that it is important to revise it or get estate plan if you get divorced because that simple act will avoid a whole lot of problems down the road.


Andrea Nelson is an attorney at Hamblett & Kerrigan who focuses her practice in the area of estate planning, including wills, trusts, health and financial powers of attorney, as well as trust and estate administration.  Attorney Nelson can be reached at [email protected].