July 9, 2025
If you’re thinking about a marital split, or perhaps you’re in the midst of the divorce process already, we understand there may be many anxiety-inducing pieces to consider. From dividing property to navigating custody, the to-do list can feel endless, but it’s important to remember to revisit your estate plan.
It’s likely that your estate plan needs a second look. Documents like wills, trusts, healthcare directives, and beneficiary designations were probably created when your marriage was still intact. If they’re not updated, they can leave your ex-spouse in control of major financial and medical decisions, or even positioned to inherit your estate
In this article, we’ll walk you through what needs to be revisited, what laws come into play in Oregon and Washington, and common questions we receive related to divorce and estate planning.
Divorce can unravel the plans you made for your future. While it’s often overlooked during the divorce process, estate planning is key to ensuring you and your assets are safe during the proceedings.
When you were married, your spouse may have been named as your healthcare proxy, your financial power of attorney, your will’s executor, or the main beneficiary of your estate. If something unexpected happens, you probably don’t want your soon-to-be ex making those important decisions for you.
Beyond decision-making authority, money and divorce often go hand in hand in estate planning. Your financial accounts, life insurance policies, retirement funds, and property titles may still list your spouse as the primary beneficiary. Updating your will after divorce means your ex won’t inherit any assets you don’t want them to.
In short, updating your estate plan during/after divorce ensures your assets are protected, your wishes are followed, and the people you trust are in charge.
Meanwhile, if you do not update your estate plan after divorce, your ex-spouse could remain the legal decision maker for your health or finances, or even inherit your assets by default. Outdated documents can also lead to family disputes, delays in probate, and outcomes that don’t reflect your wishes. A few simple updates now can prevent major headaches later.
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There can be a lot to update in your estate plan and you may not know where to start. Here are the key documents to review and update:
Will or Trust
If your will or trust leaves assets to your former spouse or names them as executor or trustee, you’ll want to revise them according to your current wishes.
Beneficiary Designations
Some of the most commonly overlooked changes are beneficiary changes after divorce. These apply to life insurance policies, retirement accounts (like IRAs and 401(k)s), and bank accounts with payable-on-death (POD) or transfer-on-death (TOD) clauses. These designations override your will, so failing to update them can result in unintended outcomes.
Advance Directive
This document outlines your medical preferences and names someone to make healthcare decisions if you’re unable to communicate. If your spouse was previously listed, updating healthcare directives after divorce ensures someone else you trust is in that role.
Power of Attorney
A financial power of attorney allows someone to act on your behalf for financial matters. Like your healthcare directive, this should be reassigned to someone you trust post divorce.
By following this estate planning checklist after divorce, you can protect your wishes and avoid costly mistakes.
We represent clients in both Oregon and Washington, two states where divorce, estate, and property laws vary significantly. It’s important to understand those differences since they can impact your estate planning decisions.
Washington is a community property state. This means most assets and debts acquired during the marriage are considered jointly owned and are typically divided 50/50 in a divorce.
Oregon is an equitable distribution state. Instead of splitting everything evenly, courts divide marital property in a way they consider fair, which doesn’t always mean equal.
These distinctions affect how your assets are treated during the divorce and in your estate plan.
Both Washington and Oregon have revocation laws that automatically revoke provisions in favor of your former spouse after a divorce. In other words, unless they explicitly state otherwise, if your will or trust leaves assets to your ex-spouse, those provisions may be treated as if your ex had predeceased you.
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Below are some of the most common questions we receive about the divorce and estate planning process
Until your divorce is final, your spouse still has legal priority to make both financial and medical decisions for you if you become incapacitated. For many, the thought of a soon-to-be ex making choices about life support or handling finances is uncomfortable.
To avoid this, you can create an advance directive and power of attorney. These documents let you name someone else, like a trusted friend or family member, to act on your behalf if you are unable to communicate your wishes. It’s best to execute these documents as soon as possible in the divorce process. They’ll stay in effect even after your divorce is final, meaning they are essential tools for lasting peace of mind.
Filing for divorce does not automatically change your will, trust, or other estate planning documents. Unless your documents say otherwise, your existing plan and the default state laws, still control what happens to your assets if you pass away.
Once your divorce is final, Oregon and Washington law revoke any provisions in your estate plan that benefit your ex. But this only applies after the divorce is finalized, so it’s best to update your documents early if you want full control during the process.
Yes, in most cases, you can revise or create new estate planning documents at any point during divorce. In fact, it’s often a smart move.
You can revoke and execute a will, power of attorney, and advance directive during the divorce. However, there are laws that may prevent you from completely divesting your spouse in Oregon.
If you have a revocable living trust and are the sole trustee, you can usually make changes, but must be cautious not to violate asset restraining orders in place during every divorce. If you have an irrevocable trust, a joint trust with your spouse, and/or your spouse is also a trustee, it’s best to consult an estate planning attorney to understand what’s legally allowed during and after divorce.
Read more: Estate Planning During a Pending Divorce
An asset restraining order is a court order that automatically goes into effect during divorce to prevent either spouse from hiding, selling, or moving assets. It applies to the spouse filing for divorce as soon as the case is filed, and to the other spouse once they’re served.
The goal is to preserve the marital estate until everything’s legally divided. But the order can also restrict certain estate planning actions. For example, you may not be able to change beneficiary designations or transfer assets into a trust without consent from the other party.
You can still create estate documents during divorce, but to avoid legal troubles, work with both your family law and estate planning attorneys to make sure you do not violate an asset restraining order. Once the divorce is finalized, those restrictions are lifted (unless your divorce judgment says otherwise).
Oregon and Washington law do not allow one spouse to completely disinherit the other. Both states have laws that protect surviving spouses, even if they’re left out of a will or trust.
In Oregon, a surviving spouse can claim an elective share, which is a percentage of the couple’s combined assets. The elective share is a percentage of the total combined assets of the deceased and surviving spouses based on the length of the marriage (33% is the highest elective share for a marriage that lasted 15 years or more).
The court looks at both spouses’ assets when deciding whether and how much the surviving spouse should receive. If you were separated or had unique financial arrangements, the judge can reduce or deny the elective share, but it's not guaranteed.
In Washington, things work a bit differently since it’s a community property state, which means each spouse automatically owns half of all community property acquired during the marriage.
Separate property, i.e, assets acquired before marriage or by inheritance, may be treated differently. Still, a surviving spouse may have rights to both community and separate property, depending on the circumstances. Disinheriting a spouse in Washington can lead to litigation and should be handled carefully with legal guidance.
Contact an experienced estate planning attorney and make sure they know that you are anticipating or are in the middle of a divorce. It's also important to authorize both your family law and estate planning attorney to communicate with each other about your case and share important documents. That way they can efficiently work together to help you achieve your goals.
Related: What to Expect During a Consultation With a Family Lawyer
The attorneys at Gevurtz Menashe are experienced and knowledgeable about the benefits and limits of estate planning during the divorce process.
Our family law and estate planning lawyers work collaboratively and economically to share information that ensures you and your assets are protected during your divorce proceedings.
Call our Portland offices at 503-227-1515, our Vancouver offices at 360-823-0410, or contact us online to get started.
