Effect of Divorce on Estate Planning and Wills
A divorce means changing practically everything in your life. From finances to children, very little remains untouched when a couple divorces. So what happens when a couple divorces, but one or both spouses have not changed their wills and one spouse dies? What happens if one spouse dies before a divorce is final? If a spouse dies while a divorce or dissolution of marriage is in process, but not yet final, the other spouse will inherit under the will. Once the divorce is final, gifts to an ex-spouse in a will are no longer valid unless the will specifically says the gifts should be valid, even in the event of divorce. An ex-spouse can inherit, but the intent to provide for the ex-spouse must be clearly stated in the will.
A will is not completely thrown out just because gifts to an ex-spouse are no longer valid. If the will doesn't specify who will inherit instead of the ex-spouse, the property left to the ex-spouse might go to the person named in the will as getting everything left over. Since, this might not be what you want, it's always a good idea to rewrite your will after the divorce so that you can make sure your property goes where you want it to go.
The rule about invalidating gifts to ex-spouses doesn't apply to trusts, insurance policies, retirement plans, or instruments like living wills. All of these must be changed to exclude the ex-spouse if that's desired. Because many people use living trusts instead of wills to transfer the bulk of their property at death to avoid the delays and costs of probate, it's very important to remember to change living trusts after a divorce.
Sometimes spouses want to change their wills and other estate planning documents to ensure that their soon-to-be ex will not inherit while the divorce is pending. Some states will not allow a spouse to be completely disinherited before the divorce is final, so be sure to check your state's laws before deciding what to do. It's also important to make sure that your estate planning changes are consistent with the property division agreement or order in your final divorce decree.
See Wills on the Free Advice Divorce Law page for more information.
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