Divorce and Your Will

Whether you are a couple who is in the midst of contemplating a divorce amidst the craziness of the holidays, or whether a divorce has already occurred in your past, it is vital to understand how a divorce can affect an estate plan. More specifically, it is important to know what could happen if someone leaves behind a will that was created before their divorce, a will that was never updated to factor in the divorce. An experienced probate lawyer can best help you understand how this works, as state laws heavily influence how a will is followed after a divorce, but here is a general overview of the topic.

The majority of states will revoke any gifts that someone bequeaths to their former spouse in a will that was created before the divorce. So who then would receive the property? In these states, the situation would be addressed in the same manner as if the former spouse had passed away before the will-maker did. This means that any alternate (or contingent) beneficiary named for that property would get it. If there is no such beneficiary named, then a residuary beneficiary would receive the property. But if no one is named as a residuary beneficiary in the will, then that property would go to closest surviving relatives, per state law. There are even states where gifts to a former spouse's relatives would also be automatically revoked upon a divorce. It important to note, however, that these revoked terms would not invalidate the entire will. The rest of the will can still be upheld.

What happens if the former spouse was named as executor? This portion of the will is normally revoked at divorce as well. The alternate executor would then be the one to serve in the capacity as executor or trustee. But if such an alternate was not named, then a probate court would choose the executor or trustee according to the state's laws.

Then the situation can get even trickier if a will-maker died before a divorce was finalized. If a couple was in the middle of an uncompleted divorce upon the will-maker's death, then most states would uphold the passing down of any gifts to a spouse that a will provides for, regardless of the fact that the will-maker would probably have changed those terms if they had been given the chance. However, if a couple was in the midst of a permanent separation, then this could revoke those terms of the will. If after a divorce finalizes, the former spouses decide to remarry one another, then the old will is again valid, in all its terms.

So if you are looking at a divorce in your future, or if you have already had one and not yet updated your estate plan, it is in your best interests to do so at once, so that you can control who would benefit from your will. You can revoke your current will in order to install an updated will, in which you can name different beneficiaries. And post-divorce, you should probably update your power of attorney as well.

Or if you are an executor dealing with a former spouse who claims the right to receive gifts from the will, you could certainly benefit from the expertise of a probate lawyer as well, someone who may be able to help you resolve the matter peacefully. Whatever issue you face in probate, it is often ideal to have a probate attorney on your side who can acquaint you with the laws in your state and help you find your way through this highly complex area of law.