Depending on certain factors, according to the National Survey of Family Growth, 20% to 53% of today’s marriages end in divorce. It’s a statistic many of us have heard before, but while we think about the short-term repercussions of divorces, we don’t always consider the effects divorce has long-term, including on a will.
If you have recently been divorced or are experiencing a separation, you should know how your marital status affects your wishes after you pass.
When an individual marries, the new relationship immediately impacts any previous legal arrangements. As your spouse, your partner is automatically entitled to a share of your estate.
Even if your will requests otherwise, that share remains your spouse’s legal right.
This can be altered through premarital agreements or revised wills after marriage. Divorce, however, is a slightly different story.
Before continuing, it’s important to note that state laws vary in terms of how wills are handled after a divorce. The following information provides what occurs in the majority of locations only. It is always advised you double-check your state laws and speak to an attorney before making any final decisions.
If an individual passes away before revising their will, any items gifted to the ex-spouse are typically revoked. The state realizes your divorce represents a separation of interests and that it is likely the individual no longer wishes for the gifting to take place.
In some states, this is taken a step further: any gifts to members of the ex’s family are also revoked. A few states, however, do uphold the divorced spouse’s right to your possessions.
In the eyes of most state laws, your previous spouse is no longer eligible to receive any property left in your name. In these cases, your property will be given to alternate or residuary beneficiaries. A residuary beneficiary is a person who receives assets not mentioned in the will or assets not allocated to specific individuals in the will.
If the will lists no other individual as eligible to receive your property, it will be given to the closest surviving relative pursuant to state intestate laws.
For parents, the most critical aspect of their will is ensuring the wellbeing of their children. If a divorced individual names the ex-spouse as the guardian in their will, the ex-spouse will take care of the children.
Even if the will does name another individual as the guardian of your child or children, that person will likely face challenges to their right to care for the young ones unless both parents are deceased or your ex-spouse was previously deemed incapable of providing adequate care.
Trusts are complicated after a divorce. A trust provides information about how your estate will be distributed after you die. It outlines any special requests or requirements. The significant factor to remember about trusts is that they go into effect immediately.
Irrevocable trusts transfer assets to the trustee right away and cannot be altered, unless a trust protector is in place. In cases where a conflict of interest may be present and may result in beneficiaries unfairly being denied assets, courts may close the trust to everyone except the beneficiaries.
Revocable trusts should be dissolved or amended after a divorce. The assets described in these trusts can then be added to the couple’s divorce papers so it is clear who should receive what.
Couples frequently list each other as the executor for their wills. If a divorce occurs, most states will honor the separation’s request by revoking the ex-spouse’s role as an executor. Instead, if an alternate executor is named, the appointment will go to him or her. If no alternate executor is named, the court will appoint someone it deems appropriate.
In some cases, a divorce isn’t finalized before a spouse passes away. In these instances, the court will likely behave as though the couple was still married regardless of how unfair this may seem.
In rare cases, the spouse can be disqualified as a surviving spouse. This may require hiring an attorney to prove the surviving spouse abandoned the deceased or failed to support the deceased when he or she had a duty to do so. In some states, long separations may also disqualify an individual as a surviving spouse.
After disqualification, the surviving spouse is treated as though the couple was divorced.
Only 40% of the US population has a will, meaning 6 in 10 Americans do not have wills or living testaments. If a divorce was not finalized and the deceased has no will, the court will most likely appoint the current spouse as the executor. If the divorce was finalized, adult children are more likely to be appointed as executors.
As you can see, it is wise to rewrite a will after a divorce. Not only will it protect your wishes and assets, but it will also ensure the needs of your children are met.
During this process, take the time to:
Although divorces are stressful, revoking and creating a new will is the best way to ensure that your final wishes are carried out to your specifications.
Avoid relying on a codicil to change your will. Codicils are additional documents attached to a will that clarify desired changes to the original document. They are best reserved for small alterations, such as changing a beneficiary’s last name.
Instead, completely recreating a will is optimal after a divorce because the changes made to the will have a profound effect on its distribution.
Although there are software programs that allow you to create your own will, you should seek the advice of an attorney.
A law professional will know the different rules that apply to divorces and wills in your state. He or she can guide you through estate planning and help you understand what to put in a will so that you can focus on the present and no longer worry about the future.
Marina Pal is a renowned author and social media enthusiast.