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

February 9, 2022

You’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. 

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? 

We’re getting a divorce! Why does my spouse still have rights? 

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. That’s a long time, and leaves you in a legal limbo, unless you take the proper steps.

What are my spouse’s rights while we divorce? 

  • 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 “elective share”.
  • 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. 
  • They may also be granted full custody of your children. 

As you can see, during the divorce process, it’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 I’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. 

We’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 don’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. 


This article should not be construed as legal advice. Everyone has a unique case and it’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.

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