Divorcing? Don't Forget to Update Your Will!
Happily married couples often have a mutually beneficial and comprehensive estate plan. This usually includes wills that give some or all of a deceased's property to a surviving spouse; trusts that list a spouse as a beneficiary; insurance policies and IRAs with survivorship; and durable powers of attorney.
These documents all serve an important purpose, making sure that a surviving spouse is taken care of.
But what happens when that marriage is no longer happy? After divorce, will all these documents still be valid?
It depends on your state. Many states have passed laws that, in the event of a divorce, will automatically revoke the parts of a will that deal with an ex-spouse. Some may also revoke the will entirely. They, however, usually don't make post-divorce will changes that involve gifts left to relatives of an ex-spouse.
Most states also don't automatically make post-divorce trust changes, or remove an ex-spouse as the beneficiary of life insurance policies, retirement plans, IRAs, and other property with survivorship. Durable powers of attorney are also usually still in effect.
What does all this mean? In addition to a divorce lawyer, you may also need a trusts and estates attorney.
If your state revokes the entire will upon divorce, you're going to need a new one. If it only revokes certain provisions, you're going to need to reassign property and potentially remove relatives of your ex-spouse. A divorce will also likely require you to choose a new executor. It's also almost certain that as a result of a divorce, trust documents will need to be changed, and new beneficiaries chosen.
And for those of you who may still like your ex-spouse and want him or her to retain the benefits or power granted by any estate documents, you may have to make amendments stating so. The law likes to presume that all divorces are acrimonious.
- The American Bar Association Guide to Wills and Estates (ABA via FindLaw)
- How does divorce affect my estate plan? (FindLaw)
- When Changing a Will is Appropriate (FindLaw)
- FindLaw Survey: Most Americans Don't Have a Will (FindLaw's Law & Daily Life)