Update Your Will After A Divorce

Posted on August 21, 2017 by Freiwald Law

“Married in July with flowers ablaze, Bitter-sweet memories in after days,” chimes one archaic saying about weddings in July. “A July bride will be handsome, But a trifle quick-tempered,” goes another. July is, perhaps a bit superstitiously, thought of as a bad month to get married. A recent study done by sociologists at the University of Washington, however, may lend some credibility to this old superstition. According to the study, come August, there is a noticeable spike in the number of divorces that take place. Personally, I think it’s time for us to divorce those outdated sayings and get married to a new one, “if that July marriage goes astray, an August divorce makes it go away.”

If you already have important legal documents like a Will, Power of Attorney, or Advance Healthcare Directive, there are many defining moments throughout life that serve as an important reminder to update them. If you don’t have these documents in place already, these life-altering events should be a reason to have them drafted. Divorce is, for some obvious and some not so obvious reasons, one of those events.

Most husbands and wives will draft a Will leaving all or most of their property to one another, but what happens to that Will after a divorce? That might depend on your state because different states handle property left to an ex-spouse differently. For example, some states declare that any provisions favoring an ex-spouse are considered null and void. If you’ve left property to an ex-spouse, it may instead pass to a predetermined alternate beneficiary or, in some situations, to a distant and unintended heir as decided by state law. This means that some long lost cousin might be getting all of your stuff! Some states even allow an ex-spouse to contest your Will to argue that they were intended to remain a beneficiary following the divorce. Will contests can be a financially and emotionally draining process and can be discouraged through smart planning.

On the other side of things, maybe you’ve still got a good relationship with your ex-husband or ex-wife. In that case you may wish to leave them some property or a monetary gift at the time of your death. However, failure to update your Will to specifically indicate this intention may cause your spouse to be left with nothing but heartbreak.

It’s not all about what you leave in your Will. It’s very common for a husband and wife to name each other as the executor of their estates. Your choice of executor is an important one because he or she is the person who will be responsible for causing your Will to take effect after you die and will be the one to implement your wishes. Your executor has many other responsibilities as well. For example, your executor is responsible for gathering your assets, taking care of funeral arrangements, and hiring any necessary professionals, like lawyers, to assist with the process of distributing your property and following your Will. The executor is the point person between your estate, your family, friends, and the legal system.

After a divorce, provisions naming an ex-spouse as the executor may be determined to be invalid. Failure to update your Will with a new choice or to clarify that, despite the divorce, you still wish to have the ex-spouse be named could cause a bad result. Fighting amongst family or friends over who should carry out this role is one expensive possibility. Another involves the court appointing someone on your behalf. In either case, your affairs may be handled in a way which you would not have agreed with. Updating your Will can make this an easily avoided result.

In some states, provisions that provide for an ex-spouse may not be enforced, but provisions providing for a relative of an ex-spouse will remain valid. Perhaps during better times you were close with a relative of your ex-husband or ex-wife, but now your relationship with that person has been strained past the point of repair. Failure to update your Will to remove them as a beneficiary could cause another unintended result. Meanwhile, the people you would have wanted your property to go to are being left out.

This is not meant to be a comprehensive guide. Instead, I offer these as a handful of some of the more common situations that might arise in the event of a divorce. Through diligence and planning, many of these bad results can be avoided. Your legal documents are best thought of as living, breathing things that grow alongside you. In order for them to have the best effect and to ensure that your intended goals are accomplished, they must be revised from time-to time.

For more information or to learn how we can help, head over to www.communitylegaladvisors.com.