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How Does Divorce Affect Your Will?

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Divorcing, in most states, will impact how a deceased ex-spouse’s estate is distributed. Although it would seem intuitive that divorce would automatically preclude a person from inheriting from their deceased ex-spouse’s estate, in many states, an ex-spouse may still inherit under certain conditions. Whether a divorce will impact an ex-spouse’s status as a beneficiary in a will varies by according to state law.

Bequests made to former spouses are mostly revoked

Despite this variation in law across the states, a majority of state’s laws maintain that if a couple of divorce, any bequests in the will made to a former spouse are automatically revoked. Therefore, upon the date of divorce, any bequests to the ex-spouse become legally null and void and would likely either transfer to an alternative beneficiary or pass according to the state’s intestacy laws, which would normally pass to the closest living blood relatives. However, some states which allow for a former spouse to be disinherited upon divorce may still allow an ex-spouse to challenge a will and request an equitable share of the estate despite being divorced; this process is known as asserting an elective share. If successful in asserting an elective share an ex-spouse may be awarded a portion of the deceased ex-spouse’s estate as defined by the law of that state. An elective share normally consists of a third or half of a former spouse’s estate.     

In some states will remain valid even after divorce

Unlike the states which treat divorce as grounds for disinheritance, a small minority of states, take the position that a will made by a divorced couple during the marriage will remain valid if a new will has not been executed removing the ex-spouse as a beneficiary of the estate. In these states, the burden is on the testator to execute an amended or new will with terms that exclude the former spouse, if he or she wishes to disinherit their ex-spouse. Under these circumstances, it is important the will explicitly excludes an ex-spouse and revokes the previous will.

Create a new will after divorce

Under the laws of nearly all states the best way to ensure that final wishes regarding estate distribution are followed involve creating a new will which will revoke any previous wills which may leave estate assets to an ex-spouse either explicitly or as a matter of law. Therefore, just as is the case of any other significant change in life, it is important to consider whether an updated will is needed to account for family changes which may impact potential estate beneficiaries.

Jeff Green
This article is written by Jeff Green

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