If you neglect to update your estate plan after a divorce, everything you gave to your ex in your original will could very well add up to a nice post-divorce inheritance. Even in the most amicable divorces, it’s probably not what you had intended. Yet, people do this, as reported in the article “Rewriting Your Will After Divorce” from Investopedia.
Depending on where you live, there might be a law that automatically revokes gifts to a former spouse listed in a will. In Florida, there is a statute addressing this. In Texas, a law revokes gifts to the former spouse and their relatives. However, unless you know the laws of your state as well as an estate-planning attorney, it’s best to let the estate planning attorney protect your estate.
What happens if you die before you are legally divorced?
If your will leaves everything to your surviving spouse and you are currently in the process of separating and divorcing, it’s time for a new will as soon as possible.
Don’t forget assets passing outside of the will. Assets with beneficiary designations, like life insurance, investment accounts, and some retirement plans, go directly to the beneficiary listed on the account. If the beneficiary is your ex, you should also make those changes as soon as possible.
Your estate plan must also update any property gained or lost during the divorce. If any assets are specifically identified in your will, be sure to correct them.
The executor (the person named in your will to oversee the distribution of assets) probably has to be changed as well. If you had previously named your ex-spouse, it’s time to name a new executor.
Your will is also used to name a guardian for minor children. If you have children with your ex, you will want to appoint a guardian in case both you and your ex are not alive to raise them. If you die unexpectedly, your spouse will raise them, but you should still name a guardian. If a surviving parent has a serious problem, like addiction, child abuse, or incarceration, naming a guardian in your will and documenting the reasons you believe your ex is an unfit parent may be a deciding factor in how a judge awards custody.
Since there may be many changes to a choice in a divorce, it is better to tear up the old will—literally—and start over. A prior will is revoked by physically tearing up and destroying the original and including language in the new will to revoke all previous wills. Your attorney will know how to do this properly.
Your ex may have the legal right to challenge your will. The possible challenge is why an estate planning attorney is so necessary to create a new will. There are provisions in some states that may give your ex more rights than in other states. In a divorce situation, the use of an experienced estate planning attorney can make the difference in your ex receiving a windfall and your new spouse or children receiving their rightful inheritance.
Reference: Investopedia (September 14, 2021) “Rewriting Your Will After Divorce”