WHY REVISITING YOUR ESTATE PLAN DURING DIVORCE IS CRITICAL

As a divorce attorney, I’ve seen firsthand how critical estate planning is during and after the divorce process. The truth is, no one wants to think about their own mortality, especially during the emotional upheaval of a divorce. But failing to update or create an estate plan can lead to devastating consequences for your loved ones, especially children.

Recently, one of our clients passed away unexpectedly in the middle of their divorce. Unfortunately, she hadn’t updated her will or powers of attorney. Her estranged spouse, still legally married, inherited everything—money, assets, even control over medical and legal decisions before her death. This wasn’t the outcome she wanted, and her surviving family was left with no legal recourse. Even the assets that went to the children were controlled by the estranged spouse.

This heartbreaking situation serves as a stark reminder: your estate plan is just as important as dividing assets and creating parenting plans. In Illinois, revising your will, and creating or updating powers of attorney for health care and property, is not only wise but essential to protect your wishes.

WHY ACT NOW?
In Illinois, if you pass away without a will while your divorce is pending, your estranged spouse will inherit a significant portion of your estate under the state’s intestacy laws. Even after your divorce is finalized, certain trust provisions may remain in effect if not proactively addressed.

• A Will Protects Your Intentions: While Illinois law (755 ILCS 5/2-8) allows an ex-spouse to be removed as a beneficiary automatically after a divorce is finalized, the same protections don’t apply during the divorce process. Without an updated will, your spouse will inherit under default laws.
• Powers of Attorney Safeguard Your Decisions: Powers of attorney for both health care and property allow you to designate someone you trust to make decisions for you if you’re unable to do so. If these documents haven’t been updated, your estranged spouse could still have the authority to make medical and financial decisions on your behalf.

CAN A SPOUSE CHALLENGE A WILL?
Under Illinois law, a spouse has the right to challenge a will by renouncing it and claiming their elective share, which is typically one-third of the estate if there are children, or one-half if there are none. While this might seem like a complication, having a will still provides clarity and limits the spouse’s ability to claim more than the statutory share. Without a will, the entire estate could pass to the spouse under intestacy laws, leaving all of your assets to the spouse you are trying to divorce, instead of your children or other family members.

WHAT STEPS SHOULD YOU TAKE?
If you’re going through a divorce, here’s what you need to do to protect your estate and ensure your wishes are honored:

1. Draft or Revise Your Will: Work with an attorney to ensure your assets go to the right people, even during the divorce process.
2. Update Powers of Attorney: Name someone you trust to handle medical and financial decisions for you.
3. Review Beneficiary Designations: These are separate from your will and govern who inherits retirement accounts, life insurance, and other payable-on-death accounts.

THE BOTTOM LINE
Revising or creating an estate plan during a divorce isn’t just about money—it’s about ensuring that the people you care about are taken care of according to your wishes. Without a plan, the law will decide for you, and those decisions might not align with what you would have wanted.

As painful as it might feel to think about, taking these steps is a way to protect the future of your loved ones. Don’t leave your estate to chance. Consult with an experienced family law or estate planning attorney to make sure everything is in order.

Strategic Divorce is here to guide you through every aspect of your divorce, including ensuring your estate plan reflects your new reality and protects your family. Contact us to protect your rights and your legacy.

Michone J. Riewer is an attorney with Strategic Divorce in Lake Bluff, 847-234-4445, strategicdivorce.com.