How does divorce effect a current will or trust and powers of attorney?
In the State of Colorado, a final divorce decree automatically revokes the designation of the ex-spouse as a beneficiary or fiduciary in a will, trust, life insurance policy, retirement account, and power of attorney.
Do I have to wait until a divorce is final to update my estate plan?
You can revise your estate plan before the divorce is final. In fact, it’s wise for spouses to revise their estate plans while their divorce is pending, as Colorado law only automatically revokes a designation of a former spouse as a beneficiary or a fiduciary after a divorce is final. If a spouse dies before the divorce is final, then his/her assets would still pass to the other spouse (unless the estate plan has been updated).
Will my ex-spouse have sole custody of my children or can I name a guardian?
If you die before your children are 18 and your ex-spouse is still living and presently has custodial rights, s/he will become their sole guardian.
You should nonetheless name a guardian in your will in the event both you and your ex-spouse die before the children are 18. Ideally, you and your ex-spouse will name the same guardian to avoid fighting amongst family.
If you believe your ex-spouse is not responsible or feel s/he is abusive or otherwise unfit to parent, you should attach a memorandum to your will explaining your reasons so the court will at least consider that the remaining parent is unfit. You should also include any police reports or court records that may further speak to why your ex-spouse is unfit to parent.