Effects of Divorce on Wills

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 How Does Divorce Affect Wills?

Divorce is a legal process through which the court dissolves a marriage. When the divorce has been finalized, the parties are free to remarry when and if they choose to do so. Divorce law varies from state to state. However, all states require that the spouse who is actually filing for divorce be a resident of that state.

Additionally, some counties require an additional residency establishment, which generally ranges between six months to one year. Through the course of the divorce process, the couple’s property and assets are divided, and other issues such as child custody and support are addressed as well.

A will is a legal document which details how a person wishes for their estate to be handled when they die. The person creating the will is referred to as the testator, while the person who oversees the distribution is referred to as the executor. Those receiving property from the executor on behalf of the testator are referred to as beneficiaries. Wills are also used to designate a guardian for any underage children, and how any property that is not explicitly distributed should be disposed of. Many married couples draft a will together, especially in community property states.

How a divorce would affect a will is determined by each individual state. Some states have determined that a divorce will automatically revoke an entire will, while other states only revoke the testamentary provisions which make gifts to the former spouse. Still other states have determined that divorce does not affect a will in any way.

Many states have enacted laws which prevent former spouses from collecting on an inaccurate will. What this means is that if a divorce occurs, it will be as if the former spouse is already dead and cannot collect from the will. Some states which operate as such include Arizona, California, and Texas.

How Does Legal Separation Affect a Will?

Legal separation can be thought of as a court-approved separation, as it involves a court order defining the legal rights and responsibilities of the parties who are separating. Unlike divorce, legal separation is not a final decision, and it does not end the marriage or domestic partnership. However, it is considered to be more “serious” than an informal separation due to the fact that the terms of the separation must be reviewed and approved by the court.

Some couples do not want to get a divorce, but want to be separated in order to determine whether they should continue their marriage. Other couples use legal separation when their religion does not allow for divorce. Separated spouses do not have the legal right to remarry, and are still legally married to their spouse. This means they are also still entitled to receiving benefits offered to married couples, such as health insurance benefits, but they may live apart from each other.

In terms of how a legal separation would affect a will, most states have determined that even a legal separation would not revoke any testamentary provisions involving a spouse. To put it simply, if you are separated from your spouse, any provisions contained within your will which gives them gifts are still considered to be valid and enforceable.

In order to terminate such provisions, you would need to rewrite your will in such a way that your spouse is no longer included. However, it is important to note that some states will not allow you to disinherit your spouse prior to a divorce being finalized. Disinheritance is further discussed below.

What Happens If I Do Not Revise My Will After a Divorce?

It is possible to modify a will when it does not suit your current needs. A testator may modify their will when they are going through a divorce, or when there are new beneficiaries or a change in assets. As previously mentioned, depending on the state, a former spouse may have the right to an inheritance if the will states as much. This is why it is imperative to modify your will as soon as possible when going through divorce.

If you are divorced and die before you can modify your will, your state will determine what happens to your property. Your property assigned to your former spouse may be distributed to those listed in your will as receiving everything left over. Alternatively, the property may simply go to your former spouse, or be disbursed according to your state’s intestacy laws.

The process of modifying a will is not impossible, although it can be difficult and costly. It is much easier and less expensive to modify an incomplete or holographic will. However, when modifying a will, you will generally have two options:

  • Write a New Will: You will need to create a new will, and revoke your old will. In some cases, simply creating a new and legally enforceable will is enough to revoke the old will; this is not always the case. As such, it is generally a better idea to expressly revoke the older will in writing, or by some other legal action as advised by an attorney. In cases involving divorce, this is better done sooner than later; or
  • Add a Codicil: You may choose to add a codicil to your existing will, if revoking and redrafting are not suitable options based on your specific circumstances. A codicil is a written amendment or alteration made to an existing will. This can involve minor changes or deletions, such as disinheriting a beneficiary entirely.

It is important to note the ways in which a will may not be modified. They may not be modified by a person who holds a power of attorney; meaning, wills may only be modified by an action on the part of the actual testator themselves. Additionally, a power of attorney is terminated upon the death of the testator. Any executor named in the will, or the attorney responsible for drafting the will, do not have the power to modify an existing will.

What Else Should I Know About Disinheriting a Spouse?

As previously discussed, some states will not allow you to disinherit your spouse. Disinheritance is when a person, who otherwise would be the beneficiary of the testator’s assets, is intentionally left out of or removed from the will. Again, it is not impossible to disinherit a spouse, but it is a bit more complicated than simply leaving them out of your will.

Many states maintain laws which protect surviving spouses from being disinherited. In those states, the spouse who has been left out or is receiving what would be considered less than equitable can choose to claim a larger share of the estate. In cases of divorce, state law is used to determine whether a former spouse may still inherit under the will.

Generally speaking, the best, and oftentimes only, way to disinherit a spouse is for both spouses to reach an agreement regarding the disinheritance. This agreement should be recorded in writing alongside the will, otherwise it may not be considered valid.

Do I Need an Attorney For Issues Involving the Effects of Divorce On a Will?

If you are going through a divorce and wish to redraft your will, you should consult with an experienced and local divorce lawyer. As has been mentioned numerous times, state laws vary in terms of whether a spouse can be disinherited. An experienced divorce attorney in your area will be best suited in terms of helping you understand your state’s specific laws and how those laws will affect your legal options.

Further, a divorce attorney can also help you determine the best process for removing your former spouse from your will, as well as help you redraft a new will and revoke the old one. Finally, an attorney will also be able to represent you in court, as needed.


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