Estate Planning

Don’t wait until the divorce is final, plan during it.

Most people think about their estate plan after a divorce is final. But the pending period, when you’re still legally married but separating, is exactly when gaps are most dangerous.

By Tresp, Day & Associates · April 26, 2021

The short version While a divorce is pending you’re still legally married, so your spouse may still be your beneficiary, agent, and heir, even as the relationship ends. Some changes you can make immediately (like updating a healthcare agent or a revocable trust); others are restricted by court orders during the proceeding. Knowing which is which protects you during a vulnerable window.

Divorce is a process, not an event, and it often takes many months. During that time, your existing estate plan, built for a marriage, is still in force. Waiting until everything is final to think about it leaves you exposed exactly when clarity matters most.

What you can usually update now

Even while a divorce is pending, you can typically revise documents that concern only you, naming a new agent under your healthcare directive and financial power of attorney, and often amending a revocable living trust or will, so that, if something happens to you mid-divorce, your soon-to-be-ex isn’t making your medical decisions or inheriting outright.

What may be restricted

Courts frequently impose automatic temporary restraining orders during divorce that limit transferring or retitling marital assets and changing certain beneficiary designations while the case is pending. Those changes may have to wait until the divorce concludes. Working with counsel keeps you from inadvertently violating an order.

Plan for both phases

The right approach addresses what you can do now and sets up what happens once the divorce is final. Tresp, Day & Associates helps clients protect themselves throughout the process. See our estate planning overview.

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Since 1992, Tresp, Day & Associates has structured asset protection for families and businesses nationwide. Request a consultation or call (858) 755-6672.

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Common questions

Frequently asked

Can I change my estate plan while my divorce is pending?

Partly. You can usually update documents that concern only you, your healthcare agent, financial power of attorney, and often your revocable trust or will, so your soon-to-be-ex isn't making your decisions or inheriting if something happens mid-divorce. But courts often impose temporary orders restricting transfers of marital assets and some beneficiary changes until the divorce is final. Work with counsel to know which is which.

This article is general information, not legal or tax advice, and does not create an attorney-client relationship?

This article is general information, not legal or tax advice, and does not create an attorney-client relationship. Every situation is different and the law changes; consult a qualified attorney about your circumstances.

This website is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Every situation is different; please consult a qualified attorney about your specific circumstances.

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