Last updated Feb 19, 2025

Estate Planning and Divorce: How To Protect Yourself, Your Assets and Your Children

Youโ€™re getting divorced. That process alone is stressful, taking lots of time and energy. Then you experience a medical episode and are incapacitated. Now, the person you are divorcing is suddenly in control of your assets and your children.ย 

This is a preventable situation! No matter where you are in the process, spare a few moments to think about your estate plan: in this unique legal state, how do I protect myself, my assets, and my family?ย 

Weโ€™re getting a divorce! Why does my spouse still have rights?ย 

First, keep in mind that while you may consider yourself no longer married, under Nebraska law, you are still married until all parties sign the Decree of Dissolution. In Nebraska, this process can take six to twelve months or more to complete. Thatโ€™s a long time, and leaves you in a legal limbo, unless you take the proper steps.

What are my spouseโ€™s rights while we divorce?ย 

  • Your spouse is often legally entitled to make decisions for you if you die or are incapacitated.
  • Your spouse is entitled to at least some portion of your estate: their โ€œelective shareโ€.
  • Based on your estate plan, if you die while getting divorced, your spouse may inherit the entirety of your estate, including all the assets you have accumulated together, all joint accounts, investments, property, etc.ย 
  • They may also be granted full custody of your children.ย 

As you can see, during the divorce process, itโ€™s vital that you create a Will that specifies that your spouse is entitled to their elective share only, and the balance is distributed as you determine. Executing a Will also allows you to name the following:

  • Who your personal representative is, if you die while getting divorced
  • Who should be the guardian of your children if their biological parent is unable, unwilling, or deemed unfit to parent
  • Who should serve as trustee/s for a possible testamentary trust so your soon-to-be-ex-spouse is not in control of assets you pass to minor children

What if Iโ€™m injured or incapacitated?

While you are in the divorce process, consider creating or updating your Power of Attorney documents. Without these documents, until your divorce decree is final, your spouse has priority of appointment to make medical and financial decisions for you. A Power of Attorney will circumvent this priority.ย 

Weโ€™ve signed the Dissolution of Marriage document? What else do I need to consider?

After your divorce is final, be sure to remove your ex-spouse from any accounts, plans, or policies where he/she/they might be named as a beneficiary. This can include:

  • life insurance
  • retirement accounts
  • investment accounts
  • bank or credit card accounts
  • rental or mortgage documents

Sometimes this can be completed before the divorce is final, but some accounts must be changed after the divorce decree is entered by the court.

If you have an estate plan, speak to a Hightower Reff Law attorney to ensure your wishes are followed if you die or are incapacitated while getting divorced. If you donโ€™t have an estate plan, Hightower Reff Law can set up the necessary documents to protect you, your family, and your assets, now and in the future.ย 

 


This article should not be construed as legal advice. Everyone has aย unique case and itโ€™s impossible to provide legal advice without knowing the facts unique to your situation.


If you are seeking legal guidance or representation, contact Hightower Reff Law today.

Tracy Hightower-Henne

About the Author

Tracy Hightower-Henne

Tracy Hightower-Henne is a founding partner of Hightower Reff Law in Omaha with 16 years of legal experience. She specializes in family law, divorce, mediation, surrogacy, child support, child custody, asset and property division, as well as collaborative and uncontested divorce. Before founding the firm, she worked as a legal associate at Union Pacific Railroad and worked in the corporate tax world.

She is certified in Basic Mediation and Family Law Mediations by the Office of Dispute Resolution, a certified Collaborative Divorce Attorney, a member of the Heartland Womenโ€™s Network, and a member of the Nebraska Academy of Collaborative Professionals.

Additionally, Tracy currently sits on the Planned Parenthood Advocates of Nebraska Board and has a passion for supporting young professionals and women in business. Tracy was awarded the 40 Under 40 award by the Midlandโ€™s Business Journal in 2018 and in 2021, earned the Ten Outstanding Young Omahans (TOYO) award.

Tracy graduated from the Thomas. Cooley School of Law with her Juris Doctor in 2007 after earning her Bachelor of Science degree in Business Administration from Doane University. Additionally, she is a 2017 graduate of the Nebraska State Bar Association Leadership Academy and the New Leaders Council. When sheโ€™s not practicing law, Tracy loves reading a book on her deck and scuba diving with marine life.

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