Going through a divorce can be tough and emotionally draining, especially if you have children. Amidst the myriad of decisions that come with divorce, one aspect that often gets overlooked is estate planning. If you recently got divorced and have young kids, it’s important to update your estate plan and create a Relational Estate Plan®. This will protect your kids’ well-being and your money if you die suddenly. Here are five essential estate planning considerations for divorced parents:

1. You Can’t Prevent Your Ex-Spouse from Getting Sole Custody if You Die

Divorced parents often believe estate planning will decide custody when they pass away. However, your estate plan can’t change a court’s order about who has custody of your children. If your ex-spouse didn’t give up their parental rights, they can usually get full custody if you die. Therefore, it is crucial to work with an attorney to clarify your wishes and ensure that your children’s best interests are protected.

2. You Should Still Name a Guardian

Despite not being able to dictate custody arrangements, naming a guardian for your children in your estate plan is a vital step. This nomination is a strong recommendation to the court and can greatly influence custody decisions. Choosing a guardian you trust is very important. They should share your values and parenting beliefs. It’s important for your children to have the care and guidance you would want, even if you can’t provide it.

[Related Reading: 3 Tips for How to Choose A Guardian For Your Child]

3. Be Careful Not to Violate the Terms of Your Property Settlement Agreement

When a couple gets divorced, they create a property settlement agreement (PSA). This agreement divides their assets and money and sets ongoing obligations for both of them. It is crucial to carefully review the terms of your PSA when creating your estate plan. Violating the terms of the agreement could result in legal consequences and financial penalties. You should ensure your attorney understands your PSA and helps structure your estate plan accordingly.

4. Establish a Trust to Protect Your Assets

If you’re worried about your ex-spouse controlling your assets after you die, create a trust in your estate plan. A trust allows you to designate a trustee who will manage and distribute assets on behalf of your children according to your wishes. By doing this, your ex-spouse won’t be able to control your assets when you die. Instead, your assets will be controlled by someone you trust and used for your children’s benefit.

5. Carefully Review All Beneficiary Designations

Estate planning includes more than just your will or trust. Make sure to check and update the beneficiary designations on your financial accounts, life insurance policies, retirement plans, and other assets. After a divorce, you may need to change the listed beneficiaries to align with your new circumstances. If you don’t update beneficiary designations, your ex-spouse might get assets meant for your children or others.


Relational Estate Planning is important to protect and support your children after a divorce. While you may not have control over custody arrangements, you can still take steps to protect your children’s future. To protect your children and ensure your assets are distributed as you wish after you pass away, remember to select a guardian, follow your property settlement agreement, establish a trust, and review your beneficiary designations. In addition, make sure to consult with an experienced relational estate planning attorney. They can help you navigate the issues and create a plan tailored to your unique situation.

If you have questions about estate planning after a divorce, call us today!


Joshua E. Hummer, Esq. is the founder of Relational Estate & Elder Law, and he has been a practicing attorney for over 15 years. While experienced in many parts of the law, Josh specializes in estate planning, estate administration, and elder law. He is licensed in both Virginia and West Virginia. Josh’s passion lies in helping people gain peace of mind about the future through holistic legal planning. When he isn’t meeting with clients or crafting legal documents, Josh enjoys spending time with his lovely wife, Jill, and their four vibrant children.


Disclaimer: The information you obtain in this post is not, nor is intended to be, legal advice. This blog shares general best practices when navigating Virginia or West Virginia law, but you should consult an attorney for advice regarding your individual situation.