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Divorcing in New York? Review estate plan before divorce is final

When you are in the midst of a divorce, you'll get plenty of advice from friends and family to change your estate plan when the divorce is final.

Here's another piece of advice: There's no time like the present to alter your estate documents.

If you become incapacitated or die before the divorce is final, your soon-to-be ex-spouse would have much of the control over future decisions. That's why you should consider the following:

  1. Find out what can and cannot be changed under New York state law. Your attorney will tell you what you can't change -- beneficiary designations, perhaps -- until the divorce is final.
  2. Choose a new health care proxy. If you fall ill or have an accident, is your spouse still the person you'd want to make decisions about your medical care? Maybe you are on great terms and have much love and devotion. No change could be required. If you're on the outs, you likely will want to choose someone else.
  3. Modify your power of attorney. Spouses frequently give each other rights and access to all assets, including those held in a single name only. Revoke that power of attorney and create a new one with another party. Your attorney can do that and let your spouse know the action you've taken.
  4. Draft a new will. Remove your spouse as the executor and choose a new alternate guardian for your minor children should both you and your ex pass away.
  5. Review your prenuptial or postnuptial agreement. Your new estate plan should coincide with either of those agreements.
  6. Discuss amending your trust with your attorney. Will your ex-spouse manage and have access to the trust? If your kids are the beneficiaries of the trust, you likely will want someone other than your ex-spouse to manage it.

That's the preliminary work. Once the divorce is final, you'll want to look at the estate plan again and finalize it. Your attorney will remind you to check all the beneficiaries. If your ex-spouse still is listed, they could receive funds and property. This could send your estate into litigation.

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