Major changes in your life—such as marriage, having a baby, moving out of state, or divorce—should prompt a revisit to your current will. It is important to revise your will at these times in order to ensure your estate planning is up to date. If you forget to update your will after a divorce, you risk having your assets distributed to your ex-spouse.
- Your will identifies beneficiaries to receive your assets after your death, names an executor to handle the estate distribution process, and nominates a guardian for your children, if necessary.
- Many states have laws in effect that revoke gifts to a former spouse after a divorce; however, it is wise not to rely on state law.
- After a divorce, you will want to change your beneficiary designations, add or remove property transferred during the divorce, update your appointed executor, and designate a guardian for your children in the event that you and your ex-spouse are both unavailable to raise them.
State Laws and Gifts
Many states have laws that, after a divorce, automatically revoke gifts to a former spouse listed in a will. For example, a Florida statute states, "Any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage. After the dissolution, divorce, or annulment, the will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage unless the will or the dissolution or divorce judgment expressly provides otherwise."
Some states go even further to include provisions that revoke gifts to family members of a former spouse. If you live in a state that has such a law, gifts to former stepchildren would also be revoked after your divorce. For example, according to a Texas estate code, "All provisions in the will, including all fiduciary appointments, shall be read as if the former spouse and each relative of the former spouse who is not a relative of the testator had failed to survive the testator."
Typically, if you had alternate beneficiaries listed in your will, the gifts would default to them. If you had no alternate beneficiary for a gift, the person you listed in your will as a residual beneficiary would inherit the assets in question. However, it is not a great idea to rely on state law in these matters. Additionally, during the divorce process, you are still technically married, and you may wish to change your beneficiaries in advance of the final divorce decree.
Beneficiaries in Your Will
Most married people leave everything in their will to their surviving spouse. If this is how your will currently reads, be sure to remove your ex-spouse as a beneficiary and add a new beneficiary. This could be a friend, a family member, or your child(ren), if any.
Be aware, however, that many assets are passed outside of a will. These asset transfers are based on bank or insurance documents. Therefore, it is also critical to change the beneficiary designation on those documents. The two major items to update outside your will are documents for:
- Life insurance
- Retirement accounts, such as an employer-sponsored 401(k) or an individual retirement account (IRA)
You will also need to update your will for any property gained or lost during the divorce. If you have assets that are specifically identified in your will, be sure to update them for any changes that may have occurred because of the divorce.
Executor of Your Will
An executor oversees the distribution of your estate according to your wishes. If you don’t want your ex-spouse handling your personal affairs, it is best to assign a new executor. Again, some states have laws that revoke the appointment of an ex-spouse as executor, but it is best not to count on state law.
Guardian for Your Minor Children
If you have children with your ex-spouse, you will want to update your will to appoint a guardian in the unlikely event that both you and your ex-spouse are not available to raise your children. In the event of your untimely death, your children will most likely be raised by your ex-spouse.
Courts typically do not assign guardianship to third parties unless both parents are deceased or unfit.
A parent can be deemed unfit if there is a serious and ongoing problem, such as child abuse, incarceration, or addiction. If you believe your ex-spouse is an unfit parent, documenting it in your will is one place to start accumulating evidence.
How Do You Update Your Will?
You can update your will by codicil or by writing an entirely new will. A codicil is an amendment to a previous will. Because there will be many changes to your will resulting from your divorce, the easiest option may be to write a new will.
If you write a new will, you can revoke your old will by physically tearing up the original or listing in the new will that all prior wills are revoked. The newer date on the current will ensures that it supersedes the previous will. You can find sample wills online to follow a standard format, use a software package to make your will slightly more specific to your situation, or consult with an estate-planning attorney.
What's the Best Way to Change Your Will After Divorce?
Tear up your old will (literally) and start over. Chances are you left everything or almost everything to your spouse in your original will. Start fresh with new beneficiaries and alternates in case your first choices do not outlive you.
Can You Change Your Will Before Your Divorce Is Final?
Even though you are legally married until a judge signs a divorce decree, that does not mean you can't change your will or estate plan at any time. The rules vary, and depending on the type of estate plan or will you have, you can make some changes immediately by yourself. For others, you may need to serve notice to your soon-to-be ex and file paperwork with the court before changes can be made. Finally, there are a few actions you cannot take until the divorce is final.
Can Your Ex Challenge Your Will?
Yes. An ex-spouse or even ex-de facto partner can challenge the will of a former spouse or partner. Whether the challenge will be successful will depend on the court's interpretation of a variety of factors, including what was in the divorce settlement or any other legal agreements between you.
The Bottom Line
Don’t trust that state law will back up your wishes in the event of your untimely death. If you don’t want your assets transferred to your ex-spouse—and there's nothing in your divorce agreement that requires this—be sure to put it in writing. You can do this by revoking your old will and replacing it with an entirely new one, or by writing a codicil to the original.
The important items to update in your will are your beneficiaries, executor, property, and guardianship of minor children. If you have concerns specific to your divorce and will, it could be beneficial to seek the guidance of an estate-planning attorney.