When Marriage Ends, Estate Planning Begins: The Importance of Estate Planning During and After Divorce

Reprinted with permission from The Legal Intelligencer, July 20, 2026. © 2026 ALM Global, LLC. All rights reserved.

In the midst of a contentious divorce, divorcing spouses focus on the division of assets, support obligations, and custody arrangements for minor children. Estate planning, while one of the most important aspects of a divorce, tends to be a low priority. The failure to review and revise an estate plan, both during and after a divorce, can lead to unintended and sometimes irreversible consequences for divorcing spouses. Proactive estate planning during and after a divorce is essential to ensure that testamentary wishes are honored, legal risks are minimized, and the post-divorce estate plan is protected.

Updating Revocable Estate Planning Documents

In many states, a final divorce decree automatically revokes revocable provisions in a divorced spouse’s estate plan and treats the former spouse as having predeceased. A former spouse is eliminated from the dispositive provisions of a divorced spouse’s estate plan, and the pre-divorce appointment of a former spouse to a fiduciary position is automatically revoked. The law presumes that a divorced spouse no longer wants a former spouse involved in his or her estate plan following divorce, and the law is designed to protect those who do not update their estate plans following a divorce. The timing of this change can be significant if the divorcing spouse dies during the pendency of the divorce and before the final divorce decree. Depending upon state law, in such a situation, the surviving spouse may not be deemed to have predeceased the deceased spouse, and the surviving spouse could potentially inherit the deceased spouse’s assets or serve as an executor of the estate or trustee of the trusts. Some states provide that the mere filing of a divorce action will revoke all provisions relating to the former spouse. Because states vary as to when these revocation provisions go into effect, it is crucial for divorcing individuals to understand the effect of divorce on their estate planning.

Until a divorce is final, an individual should consult his or her divorce attorney to determine whether and to what extent he or she should update estate planning documents or transfer assets during a divorce. An estate planning attorney should obtain approval from the divorcing spouse’s divorce attorney prior to changing documents, beneficiary designations, or transferring assets to ensure that the estate planner does not accidentally run afoul of the divorce laws or facilitate a potentially fraudulent conveyance.

Even if a divorcing spouse revises his or her estate planning documents to remove a soon to be former spouse during a divorce proceeding, depending upon state law, a surviving spouse may have the ability to elect against the deceased spouse’s will and take an “elective share” of the deceased spouse’s estate. For example, under Pennsylvania law, if a surviving spouse is married at the time of the death of a spouse and no divorce proceedings have been initiated, then the surviving spouse may elect to receive one-third of that deceased spouse’s augmented estate. However, if divorce proceedings have been initiated, regardless of whether a final decree has been issued, then a surviving spouse is not entitled to an elective share.

Despite potential safeguards under state law that treat a former spouse as having predeceased a divorced spouse, divorce is an opportune time for an individual to confirm that his or her estate plan is consistent with his or her changed circumstances. Often, a prior estate plan was completed when it was unfathomable that assets would pass to anyone other than a surviving spouse, children were much younger and had different needs, potential guardians were closer friends, or named fiduciaries were still alive. With assets likely to now bypass a former spouse and instead pass to children immediately upon the death of a parent, divorcing parents should reevaluate a prior plan and implement a new, updated plan that better reflects the age and maturity of children.

Divorcing individuals should also review their durable powers of attorney, health care directives, and living wills, which govern who may make decisions on their behalf during their lifetime. Many married individuals name their spouse as their primary agent under these documents, granting them broad authority over finances, legal matters, and medical decisions. During a divorce, allowing a soon-to-be former spouse to retain this authority may be undesirable or even dangerous. If an individual becomes incapacitated before the divorce is final, existing powers of attorney or health care directives may still give the spouse authority. Replacing a spouse with a trusted family member, friend, or professional fiduciary can prevent conflicts and ensure decisions reflect current preferences.

Updating Beneficiary Designations

Many people think that simply changing a will or revocable trust is sufficient to address the entire disposition of one’s estate at death. While a will addresses the disposition of probate assets, it is important to also review the many assets that pass outside of a person’s will, such as retirement accounts, life insurance policies, annuities, and payable-on-death bank accounts—all of which are controlled by beneficiary designations. Just as with wills, beneficiary designations should be reviewed and potentially updated during and after a divorce to ensure that beneficiaries are selected in a manner consistent with a divorced spouse’s new estate plan. Even if spousal beneficiary designations are automatically revoked upon divorce under state law, contingent beneficiary designations, which may not previously have been anticipated or planned appropriately because of the low chance of occurring, may now become the primary beneficiary designations. It is vital that beneficiary designations are updated to align with both any requirements under a final divorce settlement and one’s broader estate plan.

Reviewing and Reassessing Irrevocable Trusts

Irrevocable trusts often play a central role in sophisticated estate plans. Because irrevocable trusts are not automatically modified following a divorce, a divorce may significantly impact the effectiveness and original intent of an irrevocable trust. For example, a former spouse may serve in a fiduciary role as trustee, co-trustee, or trust protector. The former spouse could also be either a direct or indirect beneficiary of an irrevocable trust. If an irrevocable trust owns a business that will now be controlled by a former spouse who has no involvement in the business, there could be significant consequences to the business, its employees, the other owners, and the trust itself.

If a former spouse is willing to resign from or renounce a fiduciary position or positions within an irrevocable trust, he or she could easily be removed from the administration of the irrevocable trust. If, however, the former spouse refuses to step aside and cannot be removed, significant time and expense may be required to remove the former spouse. If a former spouse continues to retain beneficial interests in an irrevocable trust after divorce contrary to the desires of the divorced spouse or children, there could be significant tax and financial consequences to removing those beneficial interests.

In certain states, an irrevocable trust could potentially be decanted into a new trust that removes the former spouse’s beneficial rights. Decanting allows a trustee with sufficient discretionary authority over the income and principal of a trust to distribute trust assets into a new trust with modified provisions. If the state decanting statute permits a trustee to distribute trust assets to a new trust that omits the former spouse or reduces certain interests the former spouse had in the trust, then decanting could be a viable option to update and modify an irrevocable trust post-divorce.

Another option to modify an irrevocable trust post-divorce is a nonjudicial settlement agreement, which permits all interested parties to consent to the modification of administrative provisions and in some jurisdictions, the dispositive provisions of the trust, so long as the modification does not violate a material purpose of the trust. However, unlike decanting, which might not require the trustee to give notice to the former spouse of the modification, nonjudicial settlement agreements typically require that all parties affirmatively approve of the change. This can potentially create tax issues or other complications if the former spouse does not want to give up his or her interests in the trust.

Coordinating Future Estate Planning with the Divorce Settlement

Divorce settlements frequently include provisions requiring one or both parties to maintain life insurance, name children or former spouses as beneficiaries, or waive inheritance rights. These provisions are often intended to secure child support, alimony, or property division obligations. It is therefore important that an estate plan is consistent with these requirements. Failure to align estate planning documents with the divorce agreement can result in breaches of the settlement, court enforcement actions, or litigation after death. Coordinated planning between divorce counsel and estate planning counsel helps ensure compliance while still allowing flexibility where possible.

Taking the time to review and revisit an estate plan by updating wills, trusts, beneficiary designations, and powers of attorney both during and after a divorce ensures that a divorcing individual’s estate plan is adequately protected. Neglecting estate planning during a divorce can result in far-reaching consequences such as unintended inheritances, former spouses retaining fiduciary control, and costly disputes among family members. By reviewing and updating an estate plan in coordination with both divorce and estate planning counsel, a divorced spouse may protect himself or herself and loved ones from the time and expense of additional future disputes with former spouses long after the divorce is final.

Justin H. Brown, a partner at Ballard Spahr, develops creative strategies for wealth transfer, asset protection, and business succession. He also counsels fiduciaries on their duties and obligations in connection with the administration of estates and trusts.

Brittany A. Yodis, an associate with the firm, focuses her practice on estate and gift tax planning and compliance, as well as trust administration, for high-net-worth private clients.

George M. Riter, Jr., is an associate in the private client services group at the firm. He focuses his practice on estate planning for high-net-worth individuals, along with estate and trust administration.