Picking Up the Pieces After Divorce: Why Your Estate Plan Needs a Second Look

This article is written with some of the toughest people in mind – those who have gone through divorce and come out on the other side. Those of you who have experienced a divorce now know life after divorce can feel like starting over. Children are hurt, couples are hurt, in-laws and parents are hurt, holidays and special events will never be the same, and finances are impacted. Even in the best of scenarios when both parties are one hundred percent in agreement and the process is amicable, many things are going to change in your life, seemingly all at once. Without a doubt, divorce is one of our country’s most shameful and regularly occurring events.

Upon its conclusion, you will have navigated the legal process, and maybe moved to a new home, and are adjusting to a new chapter in life. Amid the emotional and financial changes, it is easy to overlook a critical part of your future: your estate plan. Failing to update your legal documents after divorce can leave your former spouse with decision-making power over your health, finances, and even inheritance — something most of us would not choose or wish upon our biggest enemies.

Why Updating Your Estate Plan Is Crucial After Divorce

Missouri law does offer some protection when it comes to removing a former spouse from your estate planning documents — but it is not automatic across the board. For example, Section 474.420 of the Missouri Revised Statutes automatically revokes any provisions in a will that benefit a former spouse, treating the former spouse as if they had predeceased you. It reads as follows: “If after making a will the testator is divorced, all provisions in the will in favor of the testator’s spouse so divorced are thereby revoked but the effect of the revocation shall be the same as if the divorced spouse had died at the time of the divorce. With this exception, no written will, nor any part thereof, can be revoked by any change in the circumstances or condition of the testator.”

Other estate planning tools, particularly those outside of probate, such as beneficiary designations or powers of attorney, are not always automatically revoked under Missouri law. That means if you do not act, your former spouse may still have legal authority or access after your death or incapacitation.

Let us walk through the essential documents that deserve your attention, and the consequences of not updating them.

1. Your Will and Trusts

As noted, Missouri law may revoke some will provisions that benefit an ex-spouse, but that doesn’t mean your will is in good shape post-divorce. You should:

• At a minimum, review what was documented and make any changes you feel necessary.
• Name a new personal representative (f/k/a executor or administrator) if your former spouse was previously appointed.
• Update bequests to reflect your new wishes. Maybe you would now prefer more to go to children, grandchildren, or charitable causes, and maybe you want to exclude your former spouse and his or her children altogether.

If you have a revocable living trust, the automatic revocation law may not apply unless your trust specifically addresses divorce. Trusts do not go through probate, and your former spouse may still be a trustee or beneficiary unless you change it.

Example:
Jean, 68, divorced her husband of 40 years and never updated her living trust. Years later, after her sudden death, her children were shocked to learn that her former spouse was still the successor trustee and sole beneficiary. The trust governed nearly all her assets, and the children had no recourse. The oversight cost the children hundreds of thousands of dollars and caused further decline of their father-child relationships.

2. Beneficiary Designations on Non-Probate Assets

These include Life insurance policies; Retirement accounts (401(k)s, IRAs); Payable-on-death (POD) bank accounts; Transfer-on-death (TOD) deeds for real estate; and Investment and brokerage accounts.

Missouri courts have generally upheld these designations if not changed prior to death, even if the individual is a former spouse. That is because these are contracts governed by the terms of the financial institution, not probate law. Further, the documents are often the last and best evidence of the decedent’s last wishes. Who is to say the decedent did not want the result that is reflected on paper?

Example:
After his divorce, Tom assumed his ex-wife would no longer receive his life insurance. But Missouri law did not revoke her beneficiary status. When he passed, his children from his first marriage received nothing, as the insurance paid out directly to his former spouse just as he had designated years earlier.

Takeaway: Review all accounts and update your beneficiary designations promptly after divorce.

3. Powers of Attorney

You may have listed your former spouse as agent or attorney-in-fact on your estate planning documents thereby giving him or her authority to make decisions on your behalf while you are alive through a Durable Power of Attorney for financial matters; and a Health Care Power of Attorney or Advance Directive. In Missouri, there is no automatic revocation of these documents after a divorce. Unless you change them, your former spouse could retain full legal authority to act on your behalf if you become incapacitated and vulnerable to deceit.

Example:
Margaret had a stroke and was unable to speak or make decisions. Her second and now former husband, whom she had not spoken to in years, was still named as her health care agent. The man had remarried and had three children with his new spouse. While unimaginable, the former spouse made decisions about her care, including which facility she was moved to, while her adult children from her first marriage watched helplessly.

Takeaway: Living probate documents such as powers of attorney should also be revised or amended following a divorce.

4. HIPAA Authorization

You may have signed a HIPAA release giving your former spouse access to your medical records. If this hasn’t been revoked, your ex-spouse may still be able to obtain your private health information.

5. Guardian Designations for Minor or Disabled Children

If you have a minor child or adult child with special needs, you may have suggested a guardian in your will. After divorce, you may want to revisit those designations. While courts usually give custody to the other biological parent, if that parent is deceased or unfit, your designation matters. If you went through a particularly contentious divorce, or if your former spouse struggles with current addiction or substance abuse problems, your guardianship documents will be an important part of your Estate Plan to update. If you have valid concerns about how fit your ex-husband or ex-wife would be as the sole provider for your children, you should put your grievances in writing and keep the document with your other Estate Plans. 

6. Non-Probate Planning Tips

Non-probate tools can be smart ways to pass assets without going through court administration, but they must be kept up to date:

• Transfer-on-Death (TOD) designations for cars, trucks, boats, etc.
• Beneficiary Deeds
• Payable-on-Death (POD) bank accounts
• Joint ownership arrangements with survivorship rights

These tools are efficient but powerful. If your former spouse is still named in these documents, that person will receive the asset.

7. Other considerations

A divorced party should also encourage others to address their estate planning. If a divorced person’s parents have their own estate plan that includes their child, their grandchildren, and the former spouse as beneficiaries, they should review their plan as well. Without change, their documents will carry out wishes that perhaps were not intended after divorce. In addition to cutting out former spouse images from family photos, the parents should also cut them out of their estate plan as well.

For any currently owned property with a title or deed (e.g., real estate, motor vehicles, boats, etc.), take time to order new deeds and titles that reflect your current wishes and only you or you and your new spouse as the owner(s).

Of course, nothing herein discounts the rare instance when couples remain good friends and continue to trust each other on various matters. As a result, nothing regarding a divorce prevents you from distributing an asset to a former spouse in an estate planning document, or designating him or her as a beneficiary, or agent in a power of attorney, or the custodian of minor children.

Final Thoughts: A Clean Slate, Legally Speaking

Divorce can be a fresh start, and revisiting your estate plan is a key step in reclaiming your future. It is not just about money, it about control, dignity, and making sure the right people are in place to help you when you need it most. An experienced Missouri estate planning attorney can help walk you through these changes and give you peace of mind that your documents reflect your new life. Do not leave your legacy in the hands of your former spouse. Update your estate plan today.

Todd Miller is a monthly contributor and regularly writes and speaks on various legal topics including bankruptcy, estate planning, probate, and elder law. He formed the Law Office of Todd Miller, LLC, 1305 Southwest Blvd., Ste. A, Jefferson City, Missouri in 2006. He has been awarded the Substantial Contributor Attorney Award by the Missouri Bar and ranked as one of the “Top Attorneys in Missouri” by The Legal Network. Mr. Miller earned his juris doctorate degree from the University of Missouri School of Law in 1999 and graduated with honors from Lincoln University in 1991. You may find him at www.toddmillerlaw.com (573) 634-2838 or on Facebook, Instagram, and Twitter.