Protecting Inheritance if Divorce is on the Horizon

Estate planning may not be the first thing on someone’s mind during a divorce. However, if it’s not addressed, an ex-spouse could end up with part or all of their estate – especially if the person dies while the divorce is pending.

Most divorces take several years, with some dragging on for more than five years if the parties are contentious or there’s significant property at stake. Until a divorce is finalized, spouses are legally married, even if they have been separated for years.

What happens if a spouse dies before the divorce is finalized?

In most cases, the spouse usually retains the right to inherit the assets of the decedent spouse. Jointly owned accounts and property with right of survivorship automatically transfer to the named co-owner.

Assets with beneficiary designations pass to whoever is listed on the beneficiary forms. If it’s your soon-to-be ex, the family won’t be able to do anything. While court cases are possible, success is not guaranteed.

Can you change your will during a divorce?

Legal rules and court orders may restrict the changes that can be made to estate planning documents once divorce proceedings begin. Be sure that any changes made comply with any restraining orders set by state law or in the divorce documents, even if they are not finalized.

Check all beneficiary designations on life insurance policies, bank accounts and investment accounts. Depending on the jurisdiction, you may be able to make changes to these documents.

Any Power of Attorney documents should be modified. This includes a financial or durable POA, as well as a healthcare proxy or medical POA. Any Advance Directives should be reviewed and modified, as necessary. Without these documents being updated, a soon-to-be ex could be the one making critical medical decisions.

For older parents, protecting their children’s inheritances.

Similar concerns arise for older parents if a child is going through a divorce. Inheritances are generally considered separate property. However, if they are commingled with marital assets, placed into joint accounts, or used for jointly owned purchases, such as a home, they lose their protected status.

If an inheritance is in the future, parents may protect the inheritance by placing it in a trust with instructions for its use, especially if the goal is for the inheritance to be used for grandchildren’s benefit.

What happens when the divorce is finalized?

Once a divorce has been finalized and executed, the ex-spouse is treated as if they had predeceased each other. They no longer have legal standing to inherit separate assets. A will should be updated immediately, since the prior will remains in effect until a new one is executed.

Legal compliance and record keeping

Courts generally don’t want to see assets moved around during the divorce process, so be sure any changes are permitted by local law. Maintain meticulous records, which may be critical in the event of disputes.

People who don’t update their estate plans during the normal course of events are even less likely to update them during a divorce. However, this is an especially important time to protect assets for the next generation and prevent unintended inheritance to a soon-to-be ex-spouse.

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Planning for Long-Term Care and Nursing Home Essentials

Planning to protect assets is just one part of preparing for long-term care, whether care takes place in a nursing facility or at home. The costs of long-term care are staggering. However, there are established strategies to protect a lifetime of earnings while remaining eligible for care through Medicaid and other long-term care benefits.

Proper planning can help preserve assets for a spouse and family members while ensuring that appropriate care can be received. The family should not be forced to bear financial responsibility for costs when planning opportunities are available.

What Type of Trust is Needed?

A Medicaid Asset Protection Trust (MAPT) is often the first step in protecting the family home and other significant assets. Unlike a revocable trust, the MAPT is an irrevocable trust, and assets placed in the trust are generally not considered countable for Medicaid purposes after the applicable look-back period has expired.

Once assets are in the trust, ownership and control are relinquished, thereby creating the protection. Medicaid and the IRS typically treat assets in a revocable trust as though they are still owned by the individual and therefore are not exempt assets.

Which Documents are Necessary for Long-Term Care Planning?

Once a person requires long-term care, it is usually because their health is failing. Giving a family member or reliable friend the authority to make decisions streamlines medical and financial decision-making if the person becomes unable to communicate their wishes.

Several documents are needed in advance: a Power of Attorney for financial matters, a Health Care Power of Attorney (sometimes known as a Healthcare Proxy), a Living Will to express wishes regarding end-of-life care and treatments and a Last Will and Testament for property distribution.

Other documents may be appropriate depending upon the individual’s wishes and medical status. A DNR – Do Not Resuscitate – should be in place if the person does not wish to have CPR performed in case of a heart attack. In some states, a MOLST – Medical Orders for Life-Sustaining Treatment – is used to document a patient’s treatment preferences for life-sustaining treatment.

Do You Have Long-Term Care Insurance?

Medicare does not pay for extended stays in a nursing home, which is why it’s so important to plan for the possibility of needing Medicaid assistance for long-term care. Long-Term Care (LTC) insurance policies are expensive, and the ability to purchase coverage decreases with age. Most people must purchase a hybrid policy, a long-term care insurance policy with a life insurance policy.

Estate and Long-Term Care Planning Go Hand in Hand

Planning can protect assets. However, it must be completed well before long-term care becomes necessary. Waiting until a medical crisis occurs limits the available options and protections available to the spouse, the family and the individual. Thoughtful advance planning can make a difficult situation more manageable and help avoid preventable financial, legal and emotional complications.

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Digital Assets and Your Estate Plan

Most Americans own between 100 and 150 digital accounts, including social media, emails, shopping, entertainment and financial accounts. Some have personal value, like cell phone photos, and others are investments, like cryptocurrency. When left unprotected, owners and heirs are vulnerable to theft, scams and permanent loss of access.

How to Protect Digital Accounts

Start by creating an inventory of digital assets, including the URL (web address), username, password, whether there is two-factor authentication (facial recognition, fingerprint access, or a code sent to an email or cell phone) and its estimated value. This information should be stored securely and updated regularly to reflect changes in the account and access methods.

If digital assets have more than sentimental value, name a digital executor. This should be a trusted person who is fluent in the digital world. If you own significant cryptocurrency, they will need to know how blockchain assets are structured and how to access accounts, including wallets and security credentials.

Include Digital Assets in Your Will – But Not Account Information

Wills become public documents when they are admitted to probate, and anyone can see them. This includes estranged relatives, salespeople and online scammers. Detailed account information should never be included in a will, and the same applies to digital assets. Instead, the will may reference digital assets generally, with access details stored separately and securely.

Most states have adopted a law allowing certain fiduciaries to access, manage, or close a deceased person’s digital accounts: RUFADAA, the Revised Uniform Fiduciary Access to Digital Assets Act. Your will should include a provision that references digital assets and authorizes appropriate access consistent with local law.

Certain Platforms Make Managing Digital Assets Easier Than Others

Facebook, Google and Apple have incorporated features that allow users to designate another person to manage their accounts upon the death of the original owners. Most platforms do not offer this, so organizing and documenting access information is necessary and is the responsibility of the account owner.

What About Cryptocurrency in the Estate Plan?

Cryptocurrency owners face unique asset management challenges, as crypto requires knowledge of blockchain transactions and the tools used to access it: digital wallets, private keys, seed phrases and other means of securing assets. Without proper planning, these assets may be permanently lost.

What if no Digital Planning is Done?

There have been, and will continue to be, court battles between tech giants and those seeking to access digital assets. For example, Apple cites user privacy policies and takes the position that data rights terminate upon death, unless a legacy contact has been established or a court order is presented.

Next Steps for Digital Asset Protection

Creating a plan for digital assets is as important today as having a will, trust and power of attorney created. The family coping with the incapacity or death of a loved one deserves clear direction and reduced risk of delay, confusion, or loss. Thoughtful planning ensures the protection of digital and traditional assets.

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Minors and Estate Planning

Every family with minor children should have a plan for their children’s lives in case something happens to the parents. It is a worst-case scenario. However, it is one that responsible parents should prepare for.

What is needed in an estate plan when there are minor children?

Some estate planning documents are needed at any stage of life, including a will, a power of attorney and a health care power of attorney. The will nominates a guardian to raise the children. Guardians are often siblings, parents, or trusted family friends.

How does a young family ensure there is money for young children?

Life insurance policies are often used to provide for minor children. However, minor children may not inherit assets directly. A life insurance policy is commonly used in conjunction with a trust to safeguard funds. A trustee has a fiduciary duty to be responsible for managing the money for the child’s benefit.

Does a guardian automatically have the right to make decisions for minor children?

A guardian has the same power to make decisions for a child as if they were the child’s parent. The guardian provides care, maintenance, and support, and makes decisions about where the child will live, where the child will go to school and the child’s religious affiliation. In most states, the court maintains oversight of the guardian’s actions, and an annual report is filed to update the court on the protected minor’s status.

Should the guardian and a trustee be two different people?

These two roles have different skill sets, and it’s unlikely one person will have both. The guardian needs to be someone who will raise your child as closely as you would. The trustee needs to be good with finances and able to manage assets and honor the parents’ wishes. For example, money set aside for a college education shouldn’t be borrowed for a trip to Disneyland.

When should we create an estate plan?

Baby’s first weeks at home are a mix of happiness and exhaustion. However, once a baby is born, new parents should have an appointment with an estate planning attorney. The parents need a will to name a guardian, trusts, medical power of attorney, financial power of attorney and life insurance.

Does a family with pre-teens or teenagers need an estate plan?

Families with teenagers need an estate plan for the same reasons as newborn parents. However, with a few differences. Once the child turns 18 or 21, they can inherit if assets are not placed in a trust. Even the most responsible young adult is not ready to inherit a large amount of money. A trustee can ensure that funds are used for a college education or trade school and not squandered.

Planning Protects the Family

Children depend on their parents to protect them, while parents can rely on an estate plan to ensure that their children are protected if they are unable to care for them. It’s a necessary part of parenthood.

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Estate Planning and Business Owners – Why Succession Planning Matters

The Importance of Early Succession Planning

Succession planning should begin as soon as a family business has established itself as profitable and sustainable. Integrating succession planning with estate planning ensures a seamless transfer of ownership while protecting wealth and safeguarding business continuity, minimizing tax liability and preventing disputes among family members, partners and shareholders.

Documenting succession planning also supports lender confidence and regulatory compliance, demonstrating strong leadership and enhancing the business’s credibility with shareholders and strategic partners.

Defining Organizational Structure and Leadership

Start with an organizational chart that clearly delineates the company structure and clarifies roles and responsibilities. How does each department work within the company? What are the processes for workflows for all aspects of the business? Clarity is key. Define who will be responsible for which roles if the owner becomes incapacitated or dies before retirement.

Establishing and Maintaining Business Valuation

Create a business valuation report to explain the company’s finances, cash flow and valuation. An independent financial professional, a Certified Valuation Analyst, or other qualified professional should be retained to prepare business valuation reports. The business valuation report provides an objective assessment of the company’s fair market value. The company’s fair market value should be determined every few years to produce reliable, defensible valuation reports.

Having external auditors, valuers and independent CPAs involved with the company on an ongoing basis is necessary to prevent a range of financial and legal risks, including internal theft and fraud.

Business Planning and Ownership Agreements

If a business plan doesn’t exist, create one to outline the company’s vision, mission and core values. Use this process to explore and clarify mission-critical success factors, including key employees, potential short- and long-term risks to the company, client relationships and operations.

Documents regarding ownership arrangements are key to a succession plan. Agreements between partners, shareholders and other stakeholders need to be legally documented. Partnership agreements typically include the purchase of life insurance policies to help maintain cash flow if the principal owner dies unexpectedly.

Coordinating Estate Planning with Succession Goals

Estate planning documents should be prepared in tandem with the succession plan if the goal is to ensure that the business continues after the owner’s death or incapacity. The tools used in the estate plan will depend in large part on how the business is owned. Everyone needs a last will and testament. However, whether trusts are needed may depend on whether the business is owned as a Limited Liability Company, Family Limited Partnership, S Corporation, or another structure.

Succession planning is never a one-time task but an ongoing legal and strategic process. When coordinated with estate planning, it preserves value, protects stakeholders and provides clarity during transitions. With proactive planning, owners can maintain control over their business’s future, reduce uncertainty for the next generation of leadership and protect their own future.

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Planning for Retirement

A successful retirement involves more than money. Good health, financial stability, estate planning and a plan for enjoying your new freedom all play a role in creating a fulfilling next chapter of your life.

The Three Stages of Retirement

Some have described retirement in three stages – the first, go-go — when you are busy traveling, relocating, or downsizing and active – the second, slow-go — when you are still able to travel and be active but not at such a fast pace – and no-go, in the later stage of life when a less active lifestyle is more suitable.

Reviewing and Updating Your Estate Plan

Early retirement is a good time to review and update your estate plan. If you arrive at retirement without an estate plan, you’ll want to take care of this sooner, not later. A last will and testament, power of attorney, healthcare proxy and trusts, if needed, should be created.

Even if you’ve arrived at retirement in good health, you still need these documents. Few people live to reach retirement age without experiencing surprises, good and bad. Having estate planning documents for incapacity, for instance, will allow others to take over for you if you become unable to speak for yourself.

Ensuring Assets Are Distributed According to Your Wishes

A last will and testament, coupled with trusts and updated beneficiary designations, is needed to ensure that your property is distributed according to your wishes. If there’s no estate plan, the lack of clarity will create problems for heirs. Even a surviving spouse can inadvertently be left in a strained financial situation without a will.

Tax Planning and Estate Considerations

Tax planning should be part of your estate plan. There may be advantages to how your wealth is distributed, regardless of its value. While most Americans don’t worry about federal estate taxes, some states still impose state estate taxes and inheritance taxes. Converting a traditional IRA to a Roth IRA, for example, might be useful for you and your heirs. It may be better to place certain assets in a trust to keep them out of your probate estate, ensure a seamless transition to the next generation, or prepare for long-term care.

Managing Investments During Retirement

If you aren’t already meeting regularly with a financial advisor, now is the time to review your investments on at least an annual basis as you withdraw money from retirement savings. Which accounts to draw from first will affect income taxes and investments.

Planning for Long-Term Care

Retirement is also the time to consider your long-term care plan. If you didn’t purchase a long-term insurance plan, find out if you are eligible to buy one. You may need to purchase LTC as part of a hybrid insurance package, since fewer companies are selling this important financial product.

Enjoying a Well-Planned Retirement

Retirement can be a fulfilling and thoroughly enjoyable chapter of life. Preparing for it in advance — financially, legally and personally — allows you to spend less time reacting to unexpected events and more time enjoying the freedom you’ve worked hard to achieve.

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Estate Planning Mistakes and How to Avoid Them

Estate planning is critical for securing your future. However, there are common pitfalls to avoid, as these mistakes can undermine the best estate plan. Here are some of the most frequently seen mistakes to keep in mind.

Not having a will and estate plan. If there is no will and no estate planning has been completed, assets will be distributed according to the laws of the state. While you are living, you need a General Durable Power of Attorney and a Durable Power of Attorney for Health Care Decisions, so your family can act on your behalf without having to petition a court for authority.

Beneficiary designations supersede the will. Beneficiary designations tell the financial institution who should receive assets upon death. Check life insurance policies, investment accounts, pensions and some bank accounts to ensure they are up to date. Courts rarely overturn beneficiary designations when challenged.

Unfunded trusts will not perform as intended. Once a trust is created, the next step is to fund it. This typically means having the deed or title revised or renaming an investment account. Without funding, the trust serves no purpose.

Full, legal names matter. This is especially true if the family includes many people with the same first name. Use the person’s full name, including the middle name and any generational suffixes, like Jr., Sr., or their generational ordinal (II, III).

Estate plans require local guidance. A will prepared in one state may or may not be acceptable in another. Some states require one witness to execute a will, while others require two. This simple mistake can make a will invalid.

Never make changes by writing on the original document. Handwritten changes to a will or a trust are not acceptable in court. Changes may be made by adding a codicil, which must be properly executed and signed in the presence of witnesses. If the changes are significant, a new will or trust may be needed.

Neglecting to coordinate joint accounts or Payable on Death accounts. If one child is listed as a joint owner on the account, they own the asset after the other owner dies and have no legal obligation to share the asset. If the intention is for all siblings to inherit equally, keep this in mind.

Digital assets need to be part of an estate plan. Digital assets outlive their owners if no one manages the accounts. Name a digital executor and prepare an inventory of accounts, usernames and passwords. Online services, a secure spreadsheet, or a simple notebook can be used.

Inform the executor of where documents can be found. Tell the executor where the will can be found. Similarly, tell representatives where they can find Power of Attorney, Healthcare Proxy and Living Will documents.

Preventing simple estate planning mistakes isn’t difficult. Taking the time to review documents and ensure all steps have been followed will spare heirs the expense of costly proceedings and potential family conflict.

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Tax Considerations in Estate Planning

Estate planning involves more than deciding who inherits wealth. It also addresses the tax consequences of wealth transfers during life and after death. Although today’s federal estate tax exemption is historically high and shields most Americans from federal estate tax, tax planning is still needed.

A “taxable estate” includes all property owned at death. This generally encompasses real property, financial accounts, personal belongings and business interests. Assets held in certain types of trusts are not counted because the trust owns them.

Do Spouses Pay Taxes When the First Spouse Dies?

Married couples receive meaningful tax protections. The unlimited marital deduction allows spouses to inherit from each other tax-free. In addition, the federal estate tax exemption is portable, meaning any unused portion of the first spouse’s exemption can be transferred to the surviving spouse if proper planning is done. There is usually no federal estate tax at the first death. However, the second spouse to die often generates state estate taxes and possible inheritance taxes.

Will You Need to Plan for Inheritance Taxes?

Only five states: Kentucky, Maryland, Nebraska, New Jersey and Pennsylvania, still impose inheritance taxes. There, the tax owed depends on the heir’s relationship to the decedent; more distant relatives often face higher rates and lower exemptions.

Why Should Estate Planning Address Income Taxes?

Required Minimum Distributions (RMDs) from retirement accounts are taxable income to the owner. Large RMDs can reduce an estate’s size and push a taxpayer into a higher income bracket. Strategic Roth conversions or thoughtful trust planning may mitigate these effects.

Are Different Types of Inheritances Taxed Differently?

How assets are allocated among heirs can create tax disparities. For example, if one child receives the family home, another receives undeveloped land and a third receives the rest of the estate, tax obligations may fall unevenly. Some trusts direct the trustee to pay taxes from the “residuary estate,” which can unintentionally burden one heir more than others. Equalizing the tax impact requires clear drafting and thoughtful coordination of asset types.

Capital gains tax is another core consideration. At death, most assets receive a step-up (or step-down) in basis to fair market value. If a beneficiary sells the day after death, they may owe little or no capital gains tax. In contrast, if property is gifted during life, the recipient receives a carryover basis, potentially exposing them to significant capital gains tax on a later sale. Deciding whether to transfer property during life or at death requires analyzing appreciation, anticipated selling timelines and the overall tax impact.

Are There Still Deductions for Charitable Donations?

For those who are philanthropically minded, strategic gifting to a qualifying charity can be structured to save capital gains taxes, increase income and provide beneficiaries with income for life. Depending upon how they are structured, charitable gifts may also provide estate tax deductions.

Tax Planning and Tax Planning Should Take Place in Tandem

Estate planning is not a one-time task. Many older estate plans, especially those created before the most recent sweeping tax law changes, may now produce unintended or inefficient tax results. Regular adjustments ensure that your plan minimizes estate, gift, income and capital gains taxes while protecting your heirs and honoring your intentions.

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Do I Have an Estate? Do I Need an Estate Plan?

Any person of legal age who owns property has an estate. An estate is comprised of property, including real estate, personal possessions, financial accounts, life insurance policies, jewelry and business shares, among others.

What is an Estate Plan?

An estate plan refers to a documented, legally valid plan created to protect the estate and the person, minimize tax liabilities and ensure that property is securely passed to other people or institutions upon the death of the original owner.

An estate plan includes a last will and testament, a general durable power of attorney and an advance health care directive (with a health care treatment directive and durable power of attorney for health care decisions) and may include trusts. Each of these documents needs to work together; otherwise, they may not lead to the desired results.

People with modest estates need a good plan to protect assets just as much as people with large estates. For business owners, estate planning includes succession planning.

Does an Estate Plan Do More Than Distribute Assets After Death?

Estate planning is not just about assets or maximizing wealth. An estate plan includes essential documents that allow someone else to make healthcare decisions if you are incapacitated, whether by illness or injury. Legally enforceable documents in an estate plan are also used to express your wishes regarding medical care when you are unable to communicate them.

When you may be near life’s end, there are decisions to be made. Some people don’t want to be kept alive by artificial means. By expressing these wishes clearly in an advance health care directive, the family may be spared the emotional agony of not knowing what you wanted. A living will is often used when family members disagree about the course of care and take their battle to court.

How is an Estate Plan Used to Create a Philanthropic Legacy?

Estate plans are means of clarifying and directing philanthropy at all levels of wealth. An estate plan can be used to make gifts for education, health, science, faith, or any organization. To gain any tax advantages, the organization must be recognized by the IRS as having a 501(c)(3). Different types of trusts may be used to structure gifts to support a nonprofit, provide an income stream to beneficiaries during the trust’s duration, or offer an outright gift to a loved one at its conclusion.

Final Thoughts About Estate Planning

The question is not whether you have an estate – you do – but whether you have taken the necessary steps to protect it. An estate plan is more than a set of documents; it is a proactive expression of intentions, values and responsibilities. Whether safeguarding a modest home, managing a business, or shaping a philanthropic legacy, a properly crafted estate plan ensures that your voice is heard even if you can no longer speak, your wishes are respected and loved ones are protected from uncertainty. Creating an estate plan is an act of foresight, care and dignity.

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ABLE Accounts and Special Needs Trusts

Special Needs Trusts and ABLE saving accounts are used to provide financial support for individuals with special needs, while protecting their ability to receive means-tested government benefits like SSI or Medicaid.

ABLE Accounts Basics

Achieving a Better Life Experience (ABLE) accounts are like IRAs for individuals with special needs, available to those whose disability began before age 26. Almost all states have ABLE account programs, and most allow people from any state to open an account. However, state tax deductions may only be available if the account is opened in the state where the individual with special needs lives.

The person with special needs, friends, family, or a Special Needs trust may contribute up to a total of $19,000 per year in 2025 to an ABLE account. An individual with special needs who works but is not enrolled in their employer’s retirement plan can make additional contributions, depending on the account’s rules.

Funds in an ABLE account are to be used for Qualified Disability Expenses (QDEs). This includes education, housing, transportation, employment training, assistive technology and personal support services. QDEs may also be used for a vacation, a cell phone, or the purchase of a home. Funds may not be used for luxury goods, gifts to others, or expenses incurred before the ABLE account was established.

Penalties for misuse of ABLE funds are steep: a federal tax penalty of 10% plus income taxes. The state will recapture any state benefits received from the contributions, and eligibility for federal benefits may be put at risk. The ABLE account also requires a Medicaid payback provision upon the death of the owner.

Special Needs Trusts

Special Needs Trusts (SNTs) are used to allow a person with special needs to own assets, while protecting their eligibility to receive government benefits. Like ABLE accounts, there are restrictions on the value of the trust and how assets may be used. SNTs are usually created by parents or family members to safeguard the quality of life for an individual with special needs after the parents have passed away.

Each state has its own rules for SNTs. However, assets in an SNT may not be used for basic costs of living, like food, rent, or utilities. Funds may not be withdrawn and simply given to the beneficiary. The trustee can pay for household furnishings, a car, clothing, durable medical equipment, therapy, medication, tuition, books, care management and taxes. The SNT funds can also be used for funeral and burial arrangements.

The SNT must be reported to the Social Security Administration if the person receives SSI, with a cover letter explaining the nature of the trust, declaring it is not an available asset for SSI purposes and sent by certified mail with proof of delivery.

If the trust is funded by the individual with special needs (a first-party trust), there are likely to be limits to contributions. If others fund the trust (a third-party trust), there may be no cap on contributions. In many states, third-party trusts must include a Medicaid payback provision upon the death of the individual.

Which is Better?

While the ABLE account is simple to set up and manage, there are contribution limits to consider. The ABLE account enables more independent management by the individual with special needs. A Special Needs Trust can be considerably larger, but a trustee oversees the funds. Having both may offer the best solution for the individual’s financial well-being.

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