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Changing Your Estate Plan After A Divorce | Part 1: Wills And Trusts

Updated on
October 30, 2020
Article written by
Attorney Kevin O'Flaherty

In this article, we discuss what actions you should take to protect your will or trust after a divorce and answer the following questions:


  • How Does Getting A Divorce Affect My Will In Illinois?
  • What Changes Should I Make To My Will After Getting Divorced In Illinois?
  • How Does Getting A Divorce Affect My Trust In Illinois?
  • What Changes Should I Make To My Trust After Getting Divorced In Illinois?
  • Can I Revoke The Terms Of An Irrevocable Trust After Divorce In Illinois?


“Planning for the inevitable and preparing for the unexpected” is a core principle of estate planning; however, most who get married don’t tack on “until we get divorced” to the end of their vows. What are we to do when a marriage falls apart and divorce seems all but certain? Well, if your trust or will includes your future ex-spouse, then you best get busy amending those documents. Luckily, Illinois has some protections for estate plans that automatically trigger once a divorce is finalized.


How Does Getting A Divorce Affect My Will In Illinois?


Estate plans are meant to take into account as many unexpected events as possible. Ultimately, they exist to protect your assets from probate and to enable those who will administer your estate to better understand your final wishes and intentions. Those with a larger or more complex estate, may have multiple estate planning documents, including a will, various types of trusts, powers of attorney, a living will, and more. Even though Illinois has built in protection for estate planning in the event of a divorce, we suggest amending what documents you can as soon as possible in case you unexpectedly die before the divorce is finalized. Furthermore, once the divorce is finalized, nearly every document in your estate plan may need modification.


A last will and testament serves as the baseline estate planning document for most individuals. Your will should describe how you would like your assets distributed, guardianship of your minor children, possibly name an executor who will manage your estate during the probate process, and more. To learn more about wills in Illinois check out our article Illinois Wills Explained.


Under Illinois law, if you get divorced, your will is not automatically revoked, but any provisions that involve or pertain to your ex-spouse ARE revoked. This means that anywhere in your will that mentions your ex-spouse in relation to a provision, such as inheritances, appointments, or fiduciary responsibilities, will be null and void. However, this doesn’t mean you can get divorced and simply go on with your life without tending to your estate plan, your ex-spouse being removed from the estate planning documents leaves a hole that must be filled.


What Changes Should I Make To My Will After Getting Divorced In Illinois?


You’ll need to amend all the portions of your will that address or involve your ex-spouse. We advise against waiting for the divorce to be finalized before modifying your existing will. This protects your assets against the unlikely event of your death during the divorce proceedings. 


Following the finalization of your divorce you may need to update your estate plan further or generate an entirely new estate plan, as a divorce can severely impact your financial situation. Also keep in mind that a divorce will not revoke provisions related to friends or family members of your spouse, only sections where your spouse is named specifically.


Even if you want to keep your spouse in your will after the divorce is finalized, you’ll still need to draft a new document that reflects your updated marriage status and properly addresses your new wishes and intent. This will limit the chance for confusion on the administrators part and prevent your ex-spouse from trying to claim something he or she has no legal bearing over.


How Does Getting A Divorce Affect My Trust In Illinois?


While wills mainly serve to designate beneficiaries and guardians, name an administrator, and explain your final wishes, trusts include that information (usually in the form of a pour-over will) while also conferring benefits such as:


  • Protecting your assets from probate;
  • Minimizing estate taxes;
  • Setting up long-term care for yourself or disabled beneficiaries;
  • Or much more that you can read about in our article What is a Trust?


A living trust is the most common type of trust used in estate planning. It is a revocable trust, meaning that it can be modified or terminated by the creator during his or her lifetime. Upon the creator’s death, it automatically converts to an irrevocable trust. 


Under the Illinois Trust and Dissolution of Marriage Act, once a divorce is finalized all provisions in a trust that pertain to the ex-spouse and are legally revocable under the language of the trust will be invalidated. This will occur automatically unless the trust agreement indicates otherwise. However, just like with the will, you will need to modify or draft a new trust to fill the gaps left by your ex-spouse.


What Changes Should I Make To My Trust After Getting Divorced In Illinois?


Just as in the case of a will, if you enter into divorce proceedings you should seek to modify the trust to protect your assets during the divorce; and once the divorce is finalized, you may need to modify the trust further or draft an entirely new trust that reflects your new financial situation.


Can I Revoke The Terms Of An Irrevocable Trust After Divorce In Illinois?


A divorce will have no effect on an irrevocable trust, as is the nature of an irrevocable trust, unless provisions for divorce were specifically written into the trust. 


Changing Your Estate Plan After A Divorce | Part 1: Wills And Trusts
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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