Will My Children’s Trusts Be Affected By My Divorce

Will My Children’s Trusts Be Affected By My Divorce

A living trust is used to avoid probate and guardianship, as a living trust attorney relies on can explain.  If children are the desired beneficiaries then provisions can be made to direct the assets to them upon your death.  Because these trusts are tightly integrated with your spouse, a divorce normally necessitates a change in your living trust and other estate planning documents.
When a person gets divorced, the beneficiaries of the living trust are not automatically changed to exclude the ex-spouse.  If you want your child to receive the inheritance instead of your ex-spouse, you must make an amendment to the living trust.  Otherwise, your ex-spouse is likely to receive the inheritance instead of your child.
The living trust normally appoints the ex-spouse as the successor trustee in the event of your death.  So while the trust may be amended to distribute the assets to the child, the ex-spouse may be the person controlling the child’s inherited money.  In some divorces, this may be the desire of the client, but normally you’re going to want to appoint a friend or family member to control your child’s finances if you’ve died.
Additionally, the living trust appoints the ex-spouse as the person who will have the authority to remove and appoint trustees for the child’s trust if you are unable to do so.  This provision should be identified and amended so the ex-spouse cannot manipulate the management of the child’s funds by removing your chosen successor trustee.
If you live in one of the nine community property states, you probably created a “joint” trust, which means the grantors, those who started the trust, are co-mingled with each spouse.  These types of trusts are not amendable if you get a divorce and you should revoke the joint trust entirely.  These trusts are so integrated with your ex-spouse, both legally and for tax purposes, that nothing short of a full revocation will suffice.
Whether a joint trust or separate trusts is used, the trust appoints trustees to manage your finances in the event you become mentally incapacitated.  Once again, this is normally your ex-spouse and the living trust needs to be amended to appoint a new person.
Basic estate plans should include a will , powers of attorney and health care directives.  Some states provide that if you divorce your ex-spouse has been deemed to have predeceased you.  That means that if you have named a successor executor or agent under the power of attorney then that successor becomes the first successor.  However, do you want to have a legal document giving your ex-spouse the power to fraudulently use a power of attorney, for example, to gain access to your finances?  Prudence would dictate that you update all your estate planning documents soon after a divorce.
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