Estate planning and divorce are two of the most critical legal processes many people face, yet even small missteps can have large, long-lasting consequences. 

A poorly drafted will may lead to family disputes and long probate proceedings. Similarly, making errors during a divorce may lead to unfavorable settlements, financial loss, or drawn-out court battles. 

This guide explores common mistakes people make when drafting a will, typical errors during divorce proceedings, and how both intersect, helping you make informed, legally sound decisions.

Common Errors When Drafting a Will

Here are some common pitfalls that you should avoid while drafting a will:

1. Not Updating the Will After Major Life Changes

Life events such as marriage, the birth of children, divorce, or acquiring new assets must trigger a review of your will. Failing to update after such changes can result in outdated provisions that no longer reflect your wishes.

2. Failing to Clearly Identify Beneficiaries

Using vague or informal identifiers such as nicknames, “my children,” or “my spouse” can confuse probate. Precise legal names, relationships, and even addresses help ensure the correct individuals receive the intended inheritance.

3. Leaving Out Contingent Beneficiaries

If your will names only primary beneficiaries, but not backups, you risk a scenario where an heir dies before you or declines the inheritance, leaving assets in legal limbo or distributed under intestacy laws.

4. Not Appointing a Reliable Executor (Personal Representative)

Your chosen executor must be trustworthy, willing to take on responsibilities, and ideally legally savvy. Selecting someone reluctant, unclear about responsibilities, or unfit can delay distribution and create conflicts or mismanagement.

5. DIY Wills Without Legal Review

While templates and online “do-it-yourself” wills may seem cost-effective, they often lack specificity, omit crucial clauses, or fail to meet state formalities, increasing the risk of challenges, probate delays, or even invalidation.

6. Ignoring Non-Traditional & Digital Assets

Modern estates often include bank accounts, retirement plans, digital assets, cryptocurrencies, or online accounts. Omitting these or failing to provide access instructions may leave valuable assets inaccessible to heirs.

7. Overlooking Debts, Taxes & Outstanding Obligations

A will that distributes gross assets without accounting for debts, liabilities, or potential estate taxes can leave heirs burdened with funeral costs, unpaid loans, or tax liabilities, undermining your original intent.

Quick Insight! In the county-level probate system, for example, in Charleston County, the Probate Court opens roughly 2,200 estates per year and handles around 400 litigated cases, showing how frequently estate matters transition to the court system.

How Will Planning and Divorce Interact?

Divorce influences far more than marital status; it often requires a thorough review of every part of your estate plan to ensure your intentions remain protected. A will created during marriage may no longer reflect your goals, and failing to update it can unintentionally allow an ex-spouse to inherit property or control important decisions. 

Beneficiary designations on assets such as life insurance policies, retirement accounts, and payable-on-death bank accounts operate outside the will, which means outdated information can still allow a former spouse to receive benefits even after the marriage ends. 

Divorce is also a critical time to revisit guardianship plans for minor children and any roles involving decision-making authority. If your previous documents named your former spouse as guardian, power of attorney, or healthcare agent, those decisions may now be inappropriate. Reviewing and revising these provisions ensures your children’s care and your personal wishes remain aligned with your current circumstances.

Did You Know? In 2020, South Carolina recorded 10,261 divorces, about 28 divorces per day across the state.

What Not to Do During a Divorce Process While Drafting A will?

Things you should not do while drafting a will during your divorce process:

1. Hiding Assets or Financial Information

Concealing property, bank accounts, debts, or business interests may seem tempting, but courts often view this as misconduct. Discovery is usually thorough, and hiding assets can hamper credibility, influence alimony/property division, or lead to legal penalties.

2. Allowing Emotions to Drive Decisions

Anger, resentment, or revenge may push one to make harsh decisions, e.g., demanding excessive alimony, cutting off communication, or rejecting reasonable offers. Emotional decisions often result in protracted negotiations, higher legal costs, and worse financial outcomes.

3. Violating Temporary Court Orders

During a divorce, courts may issue temporary orders regarding custody, use of property, finances, or living arrangements. Ignoring or violating these can have serious consequences, including penalties or negative rulings.

4. Involving Children as Messengers or Bargaining Tools

Using children to deliver messages or involving them in financial/emotional negotiating is harmful, both for their well-being and for legal proceedings. Courts often view such behavior negatively.

5. Publicizing the Divorce on Social Media

Posts, photos, or comments may be used as evidence. Social media activity can impact child custody, alimony, or asset division, especially if it contradicts claims made to the court.

6. Failing to Keep Proper Documentation

Communication records, expense receipts, bank statements, and incident logs can be crucial. Without documentation, resolving disputes over custody, finances, or property may become more difficult.

7. Delaying Legal Advice or Going It Alone

Divorce involves complex legal, financial, and emotional issues. Attempting to negotiate or complete paperwork without a divorce lawyer can lead to costly mistakes and unfavorable settlements.

Professional Tips for Avoiding These Mistakes

Here are some simple steps you can follow:

• Review your estate planning documents whenever major life changes occur, including divorce, remarriage, the birth of a child, or the acquisition of significant assets.

• Consult legal professionals who understand both divorce and estate planning to ensure your strategies stay aligned and effective.

• Share your intentions with beneficiaries to prevent confusion, disagreements, or unexpected issues later.

• Keep thorough records during the divorce process, including finances, communications, and legal paperwork, to support your position if disputes arise.

• Update beneficiary information for non-probate assets as soon as possible so that your updated wishes are accurately reflected.

Conclusion

Drafting a will and navigating a divorce are both pivotal and potentially risky legal processes. Poor estate planning can lead to asset disputes, family conflict, or probate nightmares. 

Mistakes during divorce can result in unfair settlements, legal complications, and long-term financial harm. By understanding common pitfalls and integrating sound planning (especially updating wills, designations, and documentation), you can reduce stress, protect your assets, and help ensure your wishes are honored.

Remember: legal and financial matters are rarely simple. Proactive planning, clear communication, and professional guidance make a meaningful difference.
If you want to avoid costly mistakes in estate planning or need guidance during a divorce, professional help can make a critical difference. Call us at (864) 804-6330 to schedule a free consultation today to review or update your will, beneficiary designations, and divorce strategy. Protect your assets and loved ones before it’s too late.