What are the Major Considerations When Updating Your Will After a Divorce in Colorado?

January 23, 2024

How Can a Divorce Alter Your Estate Plans?

Divorce is an often complicated legal procedure. As the couple disentangles their life, they must make decisions about custody arrangements, the division of assets, and other key issues. However, one aspect of the divorce process that may get overlooked is the impact of the split on the couple’s estate plans. It is common for spouses to designate each other as executors, personal representatives, or beneficiaries for their assets in their wills and other estate planning documents while married.

It’s vital for anyone who is currently going through a divorce or has recently completed the divorce process to consult with a knowledgeable estate planning attorney to bring their essential documents into line with their new life situation. Prompt action is necessary to ensure your assets are protected for your chosen heirs, and your estate will be divided in the way you wish in the event of your passing.

How Does Colorado State Law Address Probate Issues Following a Divorce?

Divorces are complex, and it is not uncommon for individuals to forget to update their will and other estate planning documents after the process is finalized. In the past, this oversight has led to cases where a former spouse has a legitimate claim to a deceased ex’s assets despite their divorced status. To prevent these issues, Colorado legislators have included a “revocation upon divorce law” within CRS §15-11-804.

This statute automatically removes a former spouse and their relatives from certain governing instruments that were created prior to the divorce, including some:

• Wills
• Trusts
• Insurance policies
• Pensions
• Retirement plans
• Multiple-party accounts
• Powers of attorney

While this automatic revocation under law can be a useful safety net, it is not a replacement for a thorough review and update of your estate plans. The law may not cover all your estate’s governing documents, such as federal Employment Retirement Income Security Act (ERISA) beneficiary designations.

Additionally, the law only revokes the rights of your former spouse. You must take action to name a new beneficiary on your documents, accounts, and instruments. Otherwise, your property may be distributed in ways you did not wish or expect following your passing.

What Steps Should You Take to Ensure Your Will is Up to Date After Your Divorce?

Once your Colorado divorce is finalized, revoking your will and creating a new one that reflects your current situation is highly recommended. In some cases, a full revocation of the will may not be necessary if you wish to keep your estate plans essentially the same. However, it is still vital to enlist the help of a trusted attorney who can help you determine the extent of the updates you will require to meet your goals. Incorrectly changing your will could void the entire document, exposing your estate to intestacy proceedings and causing massive headaches and expenses for your heirs.

Some major topics you will need to consider as you are building your new estate plan include:

• Who will inherit your assets?
• Who will serve as the executor of your estate?
• Who do you wish to designate as the guardian of your minor children if you and your former spouse are both deceased?
• Do any of your divorce terms affect your ability to assign a beneficiary of your choosing for your assets? (For example, did you agree to keep your former spouse as a beneficiary on your retirement plan or pension?)

What if My Former Spouse and I Are On Good Terms?

Some divorces may be amicable. If you and your ex are still friends following your split and you want to ensure they are included in your estate plan, you must update your will and other documents to clearly state your wishes. Remember that post-divorce, all legal bonds and obligations you had as a couple have been dissolved, and your former spouse will no longer automatically inherit any of your assets. Your current will should be carefully updated, or a new one should be drafted, including provisions for leaving an inheritance to your former spouse if that is your wish. To prevent any confusion or potential legal battles between heirs, you should also use verbiage that clarifies that you are intentionally including your ex in the will despite your divorce.

What Other Estate Planning Documents May Require Updating After a Divorce?

Your will is not the only estate planning instrument that may require changes after your divorce. It’s very common for individuals to appoint their spouse to represent their financial, business, and health interests in the event of their incapacitation. If you have designated your ex as your healthcare or financial power of attorney, you will likely need to update these documents and name a new agent or agents you trust after your divorce.

Any accounts, policies, or trusts that require you to name a beneficiary should be examined and updated post-divorce to ensure they still match your wishes. While property and assets, such as 401(k)s, pensions, vehicles, and real estate, are typically divided as part of the divorce decree, you should still review ownership documents with a financial or legal advisor to make certain they are in order. Your family members may also need to update their wills after the divorce if they had left assets to your former spouse and no longer wish to do so.

How Can an Experienced Estate Planning Lawyer Assist You?

A well-thought-out estate plan safeguards your assets and well-being during your lifetime and ensures your legacy is passed to the people and organizations you care about after your passing. To maintain the effectiveness of your plan, you should review your important documents after any significant event.

Divorce alters many parts of your life, and updating your estate plan to reflect these changes is critical.

Our skilled estate planning lawyers at Brighter Day Law can evaluate your situation following your divorce and help you create a strategy that meets your unique needs and goals. Contact our Colorado Springs law office at (719) 733-9129 to schedule a no-obligation case evaluation.