Ideally, you should start thinking about the changes you want to make to your estate plan – such as whom you want to speak for you if you can’t speak for yourself and whom you want to inherit your property and other assets – as soon as your marriage sours. If your feelings have changed toward your spouse, your estate plan should be updated to reflect that.
However, you have to be careful with your timing. Once the divorce has been initiated by either party, Ohio imposes automatic temporary restraining orders (TROs) on both parties that can limit your options until the divorce is final.
Review your orders carefully before you act
Among other things, the TROs imposed at the beginning of your divorce typically prohibit any voluntary changes to your beneficiary designations on insurance policies and other financial accounts until the court approves or the divorce is final. If you want to make your parents or your children the beneficiaries of your insurance, for example, and you didn’t make the change before your spouse filed for divorce, you’ll have to wait.
However, unless the TRO you are given specifically forbids it, you can (and probably should) change:
- Who will be the executor of your estate: If you no longer feel you can rely on your spouse to handle your affairs after your death fairly and according to your wishes, it is time to name someone new.
- Who you will designate to have medical power of attorney: You want to designate the person you feel is the most reliable in an emergency, and that is probably not your spouse anymore.
- Who receives your personal assets: You may be entitled to make changes to your will that change who will receive your most important personal and sentimental items.
Read your TRO carefully to determine what changes are permissible and what aren’t during this time. Once your divorce is final, Ohio law treats a former spouse as if they died before the testator of a will. However, that does not mean you can simply relax, because that will not affect direct beneficiary designations or payable-on-death designations, such as those on life insurance policies, retirement accounts, bank accounts and more.
If you’re going through a divorce in Ohio, don’t overlook the importance of speaking with an experienced estate planning attorney both while the divorce is pending and after it is over.