While regular review of your estate plan is important for everybody, it’s particularly important for people who have gotten divorced since the last time they closely looked things over. And I’m not just talking about your will. I mean everything. Especially your powers of attorney and designated beneficiary forms that you completed for your 401(k) and insurance policies. The last thing that you want, after you thought you had finally gotten someone out of your life once and for all is for that person to be put in charge of handling your finances for you, or to have a claim for money that you intended to go to your kids, or your new spouse.
Why “especially” your designated beneficiary forms? Because it can be easy to become complacent about those after you have executed a will. That, however, is a huge mistake. If your will says, “All my money should go into a trust for my kids,” but your life insurance policy is still set up to go to your ex-spouse, it can create unnecessary complications, at the very least. Colorado does have a statute (CRS 15-11-804) that revokes estate transfers to ex-spouses. Nevertheless, the default beneficiary that your insurance company substitutes in still might not accurately reflect what you wanted. And for most people, life insurance proceeds are probably going to comprise the largest single chunk of their estates.
Who will care for the kids?
Of course, if you are separated from someone with whom you continue to have an antagonistic relationship, you may have bigger concerns than just where the money goes. If you have kids with that person, you may be hoping to prevent him or her from becoming solely responsible for raising them if something happens to you. Absent extreme circumstances, however, your options for preventing your kids’ other parent from becoming their day-to-day caregiver range from extremely limited to non-existent (assuming that they are willing to take on that responsibility).
Once one parent passes away, the surviving parent is, as a matter of law, the kids’ natural guardian, and attempts by you to appoint a different guardian in your will, even if accompanied by a detailed explanation as to why the other parent is unfit for the job, are almost certain to be ignored. It’s too difficult for a judge who doesn’t know either of you to tell who is being reasonable in a he said/she said fight. Especially when one of the parties is dead.
Taking action now
If you feel strongly that your kids’ other parent can’t be trusted to raise them on his or her own, your best course of action is probably to get those concerns addressed now by the court that oversaw the creation of your current parenting plan. You may have already had that fight in that forum, however. Another option might be to put the assets that you want to leave for your kids into a trust, and then appoint a trusted friend or family member to act as the trustee. Controlling how the money gets spent on your kids could give you a way to exert at least indirect influence over how they are being raised. Even that option, however, is far from foolproof. If your kids’ other parent wants to challenge your trustee’s decisions as not really being in the best interest of your children, he or she is likely to get a good hearing.
Parents that don’t get along with one another can create a lot of difficult estate issues, beyond the ones raised in this post If you have have kids with someone to whom you are not married, it is particularly important that you have a carefully crafted estate plan in place, even if you have a pleasant relationship with that person. If you are in this situation, please visit my estate planning process page to learn how I might be able to help you.