Prior To Or Following Divorce, Should Estate Planning Documents Be Updated?
Under Minnesota law, if one spouse has their spouse in their will prior to divorce, the divorce itself will make it so that the spouse does not receive anything under the will. If a parent has sole legal custody of their child and does not want their ex-spouse to be involved in the child’s life, then it would be a good idea to nominate a guardian and a trustee. It is not uncommon for a client in this position to appoint a guardian that is not the biological parent.
Can I Change The Selected Guardians For My Children Without My Ex-Spouse’s Permission?
A person can change the selected guardians for their children without first gaining permission from their ex-spouse. Prior to doing so, that person should think about what’s going to happen once they are gone. Choosing a guardian as opposed to the biological parent may or may not be in the best interests of the children. If the ex-spouse is mentally ill, addicted to a substance, or otherwise can’t take care of themselves, then appointing someone else as guardian can ensure that the children are cared for.
If ex-spouses have joint legal custody and one of them contests the guardianship, the biological parent’s rights will supersede that of the nominated guardian. For this reason, it is beneficial to have a conversation with the ex-spouse prior to making any nominations for guardianship. Additionally unless the remaining biological parent has lost their parental rights, the nominated guardian would have to petition the court to be appointed guardian.
If My Ex-Spouse And I Gave Each Other Power Of Attorney, Can That Be Revoked?
There is a revocation form for the power of attorney. Divorce generally voids the power of attorney, but it is important to make sure the power of attorney is revoked if this is a concern. It will also be important to let your bank and other financial institutions know that the power of attorney was revoked, because it is a very powerful document that allows the person to control another person’s financial assets.
Does Minnesota Revoke A Person’s Beneficiary Rights Upon Divorce?
The divorced person is treated as though they died before the creator of the estate plan, so the beneficiary right for the divorced person is revoked. The divorce would not change anything with regard to biological children, but it would change the way that the divorced person is treated. So an Estate plan created during the marriage and before the divorce would be invalid as far as any gifts to the ex-spouse. On the other hand, if the divorce decree states otherwise, if there are provisions including the divorced spouse, those provisions would govern. If one wanted to include their ex-spouse in their Estate Plan, that should be clarified by updating their Estate Plan after the divorce. Timing is important.
My Ex-Spouse Has Died And Our Minor Children Are Beneficiaries Of His Estate; What Happens If Minor Children Are Beneficiaries In Minnesota?
Children can’t inherit until they turn 18 years old, so there has to be a vehicle set up for the children to have the inheritance saved for them until they reach that age. If the ex-spouse had a Will or Trust, it is likely the plan would include a Trust for the minors. If the ex-spouse did not have a Will or Trust, the Estate would need to go through the court’s probate process. The court will oversee the probate process and ensure that the children benefit from the assets of the ex-spouse.
If My Child’s Father Did Not Have A Will, Will My Child Automatically Become Beneficiaries Of His Estate?
In the absence of a will, a person’s child will often become the beneficiary upon death. However, if the father was married, the spouse will have rights and the children’s grandparents may also feel entitled to everything. Fighting for the right to the things that the child inherits can create a difficult situation, but ultimately, the child will have the right to be a beneficiary of the estate in the absence of a will. I would recommend hiring an attorney to make sure that the child’s benefits are protected, especially if the grandparents are active in the death of the parent and might take actions with which the parent would disagree.
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