If divorce appears to be on the horizon for you, it’s never too soon to start determining what financial moves you want to make (and legally can make) to help protect your future. If you have an estate plan already in place, you’ll also want to determine how your divorce may affect those documents.
Indiana law automatically makes some changes to estate plans when a divorce becomes final. Before that point, there are some changes you can make to safeguard your interests prior to this finalization date.
Your spouse’s inheritance
Under Indiana law, a current spouse cannot be completely disinherited. The law states that if someone dies “testate” (with a will), a surviving spouse has the right to claim a share of the estate. What percentage depends on whether there are children and other factors. Whether you want to make any changes to your spouse’s inheritance prior to the divorce finalization is up to you, but you should get estate planning guidance before you do, given that your options are inherently limited to a degree.
Indiana probate law also states, “If after making a will the testator is divorced, all provisions in the will in favor of the testator’s spouse are revoked.” Thus, the law disinherits an ex-spouse automatically. That means if you still choose to leave them something or the divorce agreement requires it, you’ll need to modify your will and/or other documents to address that concern explicitly.
What about fiduciary responsibilities?
If you’ve named your spouse as your executor, your health care representative, power of attorney (POA) and/or given them fiduciary responsibility for any aspect of your estate plan, you can replace them with someone else at any point since the law doesn’t require that these roles be given to a spouse. Note that if they have those responsibilities, they’ll automatically be revoked with the finalization of the divorce. Whether you choose to leave your spouse in charge of these things after the divorce or not, you’ll need to amend your estate plan to clarify your wishes in ways that are enforceable.
Since there are a multitude of factors unique to each divorce and each estate plan, your best course of action is to have estate planning guidance available throughout your divorce. If your spouse also has an estate plan, they should do the same so that you know where you stand regarding inheritances and fiduciary responsibilities as you move forward.