7 Estate Planning Mistakes to Avoid During a Divorce

How Divorce Can Derail Your Estate Plan (and What to Do About It)

Divorce often triggers immediate concerns about dividing property, managing custody, and adjusting finances – but your estate plan deserves just as much attention. Without timely updates, your assets could end up in the wrong hands, outdated documents could create legal conflicts, and you may unintentionally give decision-making power to someone you no longer trust.

Let’s walk through the most common estate planning mistakes people make during divorce – and how to avoid them.

Mistake #1 – Not Updating Your Will

Your will outlines how your property is distributed when you pass away – and during marriage, it’s common to name a spouse as both a primary beneficiary and executor. If you don’t update your will after separation or divorce, those appointments may still stand, depending on the language used and the laws in your state.

In Texas, some provisions favoring an ex-spouse may be automatically voided under state law. However, this doesn’t guarantee clarity. Courts still review your will’s content, and outdated terms can result in legal delays, family disputes, or misdirected inheritances.

Here’s why this matters:

• If your ex is still named as executor, they may be in charge of your estate administration.
• If you’ve left property to your spouse in your will, that gift may fail legally – but the court will need to interpret the rest of the document.
• Failing to reassign guardianship nominations for minor children can leave the choice up to the court.

Checklist: What to Update in Your Will After Divorce

• Remove your ex-spouse as executor, trustee, or beneficiary
• Assign new beneficiaries and backup guardians
• Review specific bequests and property distributions
• Align your will with the terms of your divorce decree

An outdated will can cause just as many problems as having no will at all. Promptly updating yours is one of the simplest ways to protect your wishes.

Mistake #2 – Failing to Change Beneficiaries

Even if your divorce is finalized and your will is updated, beneficiary designations on certain financial accounts and insurance policies can still override everything. That’s because many assets pass outside the will – directly to the named beneficiary.

Common examples include:

• Life insurance policies
• Retirement accounts (401(k), IRA)
• Annuities
• Payable-on-death (POD) bank accounts
• Transfer-on-death (TOD) brokerage accounts

If your ex-spouse is still listed as the beneficiary on any of these, they could legally receive those funds – even if your will says otherwise.

In Texas, courts generally do not automatically revoke beneficiary designations after divorce on non-probate assets. You must take action to prevent unintended transfers.

How to fix it:

1. Request change-of-beneficiary forms from each provider
2. Choose a new primary and contingent beneficiary
3. Keep proof of the updates in your estate planning records
4. Review these designations annually or after any major life event

Failing to update beneficiaries can completely derail your estate plan. It only takes a few forms to prevent your ex from receiving money you never intended to leave behind.

Mistake #3 – Ignoring Powers of Attorney and Medical Directives

Your power of attorney (POA) documents give someone legal authority to act on your behalf – whether it’s managing your finances or making medical decisions if you become incapacitated. If your ex-spouse is still listed as your agent in these documents, they could retain significant control over your personal affairs.

Two critical types to review:

• Durable Power of Attorney: Allows someone to manage financial matters like accessing accounts, paying bills, or handling property transactions.
• Medical Power of Attorney: Grants someone authority to make healthcare decisions if you’re unable to do so.

Unless you revoke these documents and create new ones, they remain in effect – even after separation or divorce. This creates serious legal risks, particularly during medical emergencies or if you become temporarily incapacitated.

Why this matters:

• Your ex may retain access to financial accounts or sensitive personal data
• Hospitals and banks must follow the original documents unless officially changed
• Disputes can arise between your ex and current family members or partners

How to revoke and replace POAs:

1. Create new POA documents naming someone you trust
2. File the revocation of the old POA in writing
3. Notify all relevant parties, including healthcare providers and banks
4. Destroy physical copies of the outdated documents where possible

Warning: Keeping your ex-spouse as your POA could allow them to access your money, make medical decisions on your behalf, or block others from acting in your best interest. This is not something to delay.

Mistake #4 – Overlooking Trust Updates

Trusts are often the cornerstone of an estate plan – but they’re also one of the most overlooked documents during divorce. If you created a revocable living trust with your spouse during the marriage, there’s a good chance it includes them as a trustee, beneficiary, or even successor trustee.

Unless the trust is properly amended or revoked, those roles may remain active – even if you’re no longer legally or emotionally connected.

Common issues after divorce:

• Your ex still controls assets as co-trustee
• They remain a beneficiary, entitled to future distributions
• Your trust instructions conflict with your new estate intentions

Types of trusts most affected:

• Revocable Trusts: These are changeable and should be amended after divorce to reflect your new wishes. That includes removing your ex-spouse from all roles.
• Joint Trusts: Married couples often create one shared trust. After divorce, these usually need to be dissolved or split into two separate trusts.
• Testamentary Trusts: These are created by your will. If not revised, they could accidentally include your ex-spouse as a trustee or heir.

Pro Tip: Even if your divorce decree addresses asset division, it does not automatically change the language in your trust documents. You must make those changes through proper legal amendments.

Key steps:

1. Review all existing trust documents with your attorney
2. Amend or revoke trusts that no longer serve your goals
3. Assign new trustees and update all beneficiary designations
4. Confirm that the trust aligns with your new estate plan

Failing to update your trusts can expose you to legal conflict, unintended inheritances, and financial complications for your heirs.

Mistake #5 – Forgetting About Guardianship Provisions

If you have minor children, your estate plan likely names a guardian in the event that both parents pass away. Divorce can dramatically change who you’d want to care for your children – but if you forget to update this nomination, a judge may rely on outdated instructions.

Why this matters:

• Your ex may still be named as a backup or co-guardian
• You may no longer trust relatives or in-laws previously listed
• Courts give weight to your written wishes – even old ones

Important note: The surviving parent usually gets automatic custody if one parent dies. But guardianship nominations become critical if both parents pass or are incapacitated. That’s when the court looks to your will or trust for guidance.

Example Scenario:
During your marriage, you named your ex-spouse’s sister as guardian of your kids. After divorce, you no longer have a relationship with her, and she doesn’t share your parenting values. If you don’t update your estate plan, the court could follow your original nomination – potentially placing your children in a home you would no longer approve of.

How to fix it:

1. Review your current guardian nominations in your will and trust
2. Discuss options with family or trusted friends
3. Formally revise your estate plan with a new nomination
4. Communicate your intentions with those you name as guardians

Guardian planning isn’t just about paperwork – it’s about ensuring your children are raised by people you trust, even if the unthinkable happens.

Mistake #6 – Misunderstanding Asset Division vs. Estate Control

Many people assume that if they’re awarded certain assets in the divorce – like a house, bank account, or retirement fund – they have full control over how those assets are handled in their estate. That’s not always true.

Estate planning isn’t just about who owns the asset. It’s also about who inherits it and how it’s titled.

Here’s where things get tricky:

• An asset you received in the divorce may still list your ex as a beneficiary
• Title to real estate may include outdated survivorship language
• Joint accounts may still pass directly to the ex-spouse unless retitled

Key differences to understand:

• Legal Title: Who owns the asset right now
• Beneficiary Designation: Who receives the asset upon death
• Estate Plan Language: Who your documents say should inherit it

Example:
You keep the family home in the divorce and update your will to leave it to your children. But if the deed still includes a right of survivorship favoring your ex, they may legally inherit the home upon your death – regardless of your updated will.

How to prevent this:

1. Confirm title and deed details for real property
2. Update transfer-on-death or payable-on-death instructions
3. Align all documents – titles, trusts, and beneficiary forms – with your estate plan

Your estate plan only works as intended when all pieces are consistent. Ownership and instructions must match across the board to avoid legal disputes and surprises.

Mistake #7 – Waiting Too Long to Update Everything

One of the most common – and costly – estate planning mistakes during divorce is procrastination. Many people wait until after the divorce is finalized to review their documents, but by then, key opportunities may already be lost.

Why timing matters:

• You could become incapacitated before the divorce is final, with your ex still holding power of attorney
• Beneficiary designations and trust terms may be triggered by sudden health events or death
• Courts often rely on the most recent valid documents – even if they no longer reflect your wishes

Even during an amicable divorce, failing to act early can leave you exposed. You don’t have to wait for final orders to update powers of attorney, medical directives, beneficiary forms, or even your will (in most cases). In fact, updating these documents during separation can prevent unwanted outcomes.

Timeline: When to update your estate plan

• Immediately after separation:
  • Revoke old powers of attorney
  • Change emergency contacts and medical agents
  • Start gathering current estate planning documents
• During divorce proceedings:
  • Review wills and trusts
  • Update beneficiary designations on accounts
  • Meet with an estate planning attorney to coordinate strategy
• After final decree:
  • Finalize revised documents
  • Ensure compliance with divorce terms
  • Inform family or trusted contacts of changes

Delaying estate updates doesn’t just create legal risk – it leaves your future vulnerable at a time when clarity matters most.

FAQs about Estate Planning and Divorce

Do I have to wait until the divorce is final to change my will?
No. In most cases, you can and should update your will as soon as you separate. Some changes may be restricted by temporary court orders, but you can usually replace executors, guardians, and other non-financial elements immediately.

What happens if I forget to change my life insurance beneficiary?
If your ex is still listed as the beneficiary, they may legally receive the payout – even if your will says otherwise. Beneficiary forms typically override wills, so it’s critical to update them directly with each provider.

Can I change my power of attorney while still married?
Yes. You have the right to revoke and replace your power of attorney at any time, unless restricted by a court order. If your ex is still named, they could retain legal access to your finances or healthcare decisions.

What should I do with a joint trust after divorce?
Joint revocable trusts are often split or revoked during divorce. Each spouse may need to create a separate trust and reassign assets according to the divorce decree. Always consult an estate planning attorney for proper restructuring.

Does Texas automatically remove my ex from my estate plan after divorce?
Some provisions, like gifts or roles assigned to a spouse, may be void under Texas law after divorce. But this doesn’t apply to all documents – especially non-probate assets like IRAs or insurance policies. You must manually update each.

Can my ex still be guardian of my children if I die?
If your ex is the surviving parent, they typically retain custody. But for backup or emergency guardianship, your estate plan should reflect your post-divorce preferences. You can nominate someone new in your will.

Is it expensive to update estate planning documents during divorce?
Not necessarily. Many updates – like changing a POA or updating a will – are relatively straightforward and inexpensive compared to the financial risks of leaving documents outdated.

Should I involve both my divorce and estate planning lawyers?
Absolutely. Coordination is key to avoid conflicting documents or overlooking key legal impacts. At Brandi Wolfe Law, we help clients manage both sides to ensure a cohesive and protective legal plan.

Protect Your Future with Brandi Wolfe Law

Going through a divorce is stressful enough – don’t let outdated estate planning documents make it worse. At Brandi Wolfe Law, we help you take control of your legacy by ensuring every detail of your estate plan reflects your new life and legal goals.

Whether you need to update a will, amend a trust, or remove your ex from critical documents, our team is here to guide you every step of the way.

Call us today at (210) 571-0400 to schedule your consultation and safeguard your future with confidence.