How a Divorce Impacts Your Will
External life events – such as property sale, remarriage, or death – affect how property is divided or distributed in a will. As the Family Lawers at Fontes Law Group know, divorce is the most common life event that affects a will.
For instance, if one party fails to update their will after a divorce, it can wreak havoc on that person’s estate planning in ways they may not have anticipated.
So, does a former spouse inherit from the estate when you die? And how does divorce affect your will? Read on to find the answers to these questions and more.
What Happens to Property Left to a Former Spouse?
If one party writes a will and then gets divorced, many states will automatically revoke any gifts to the former spouse and declare them void. So, if gifts are automatically revoked by state law, who inherits the property?
In most cases, the property is treated as though the spouse predeceased the person who created the will. If there is a named beneficiary other than a residuary beneficiary, that person inherits. In the case where no beneficiary is named, the property is subject to state law and passes to the closest surviving relatives.
Currently, in some states, gifts to the relatives of your former spouse are automatically revoked. If gifts to former spouses are voided by state law, it’s important to note that the rest of the particulars in the will still stand.
What Happens if a Former Spouse is Named as Executor?
In the event of a divorce, the appointment of the former spouse as the executor of the will or trustee is also automatically revoked when the person who created the will dies.
When an alternate executor is named in the will, they will serve as trustee or executor instead. If the will does not name an alternate executor or trustee, the probate will appoint one according to state laws.
What Happens if the Divorce was Pending?
If the person who created the will dies while the couple’s divorce was still pending, the gifts to the spouse in the will still stand and are not automatically revoked.
If the couple was legally separated for a reasonable amount of time, the gifts in the will might become void – however, the laws about how separation affects the gifts in the will vary from state to state. If the couple’s divorce is finalized but they decide to remarry each other, the original will still stand.
The Importance of Estate Planning
Because state laws about disinheriting a former spouse after divorce vary from state to state, you should consult with a divorce lawyer to redraw your will, revise your living trusts, update your healthcare directives, and create new powers of attorney.
A qualified divorce lawyer will also be able to advise you on the best way to remove your former spouse and their relatives from your will – especially if your state’s laws don’t automatically revoke the gifts to former spouses in your will.
