A will is an essential estate planning document for married couples. It helps define how major assets will be distributed upon an individual's death, which removes the need for the costly and public probate process and protects against the potential for messy arguments among heirs.
Ultimately, a will serves as a document that will ensure you that your wishes are carried out after you die.
Many married couples get a will created together that outlines what should happen with their assets if one spouse dies before the other and also if both spouses die at the same time.
Sometimes, though, marriages come to an end before either spouse dies, bringing into question what happens to a will at this point. Below, we will outline some of the major points to consider if you're wondering whether a will is still valid after divorce.
Is a Will Still Valid After Divorce?
Many people mistake the fact that wills and marriages are not tied together, at least not in all cases. In other words, just because a marriage dissolves does not mean that a will created during a marriage dissolves at the same time.
In fact, a will remains valid after divorce, except for one major exception -- gifts made to the former spouse.
The specific rules for how this is handled differs from one state to another. In general, though, after a divorce, all gifts made from one spouse to another in the will are automatically revoked.
This comes into play if one of the spouses dies before a new will is written. In this case, there are a few ways that gifts to a former spouse are handled.
Let's assume that a couple each makes a simple will while they're still married. In the wills, they leave all of their property to the other spouse, and name their minor child as an alternate beneficiary.
After the couple divorces, the provisions that left all the property to each other becomes void. In this case, if one of the parties dies before they make a new will following divorce, all that party's property will transfer to the minor child.
What Happens with the Executor After Divorce?
Most married couples name each other as the executors of their wills. When one of the spouses dies, the other spouse becomes the executor of the will, or the trustee of a trust that was set up.
When the couple divorces, the executor is treated the same way as gifts to the other spouse. The appointment of the former spouse is revoked upon divorce.
If the will named an alternate executor, then that person would assume the duties of executor. If no alternate executor was named, then someone would be appointed by a probate court, which would follow state laws in selecting an executor.
Is a Will Still Valid if the Divorce Wasn't Finalized?
Another potential situation to consider is what happens if one of the spouses dies before a divorce is finalized. If, for example, one of the spouses dies while the divorce is still pending or in the process of being finalized, what happens?
Again, it depends on the laws of the specific state, but in general, the will would still be considered valid in this case, since nothing in the marital status changed on paper. It's possible that if there were a permanent separation in place, it could ultimately revoke the provisions in the will.
What Happens if the Former Spouses Get Re-Married?
When former spouses get re-married to someone else, but that doesn't change much -- if anything -- in regard to a will that was created during the previous marriage. The new spouse doesn't automatically get named as the main beneficiary or executor of the state, for example. Any step-children or other beneficiaries aren't automatically included on the new married couple's wills.
The potential for things to get messy after former spouses re-marry to someone else is high. Take the above example, where the former spouses have simple wills and name their minor child as an alternate beneficiary.
If the former spouse doesn't update their will after divorce and after they get re-married, their new wishes may not be carried out when they die. All that person's property would pass onto the minor child in this example, with nothing officially written to leave any property to the new spouse and/or any step-children.
The Importance of Updating Your Will
One of the biggest things that people misunderstand about wills is that they are living documents. An estate plans is not something that is created once and remains as is forever.
Wills can, and should, be updated relatively regular, especially as major life changes occur. This includes a new marriage, the birth of a child, the acquisition of a major asset or a divorce. When all these things happen, it's likely that the people who are writing the will may want to update how they would like their estate handled after they pass away.
As is laid out clearly above, if you do not update your will after a major life event such as a divorce, you will no longer be in complete control of what happens to your estate after you pass. If you don't update your will after a divorce, your wishes may be carried out based upon your life situation while you were married and not as they were at the time of your death.
Even if your divorce is a friendly one, you never want to leave anything to chance. If you don't update your will, it's possible that your beneficiary could be put in a difficult position. For example, if your child was left all your property because they were named an alternate beneficiary on your original will, they might have to deal with a difficult and challenging situation with other family members if you re-married.
Even worse, if you didn't name an alternate beneficiary in this case, your estate may be forced to go through probate. Your potential beneficiaries would then have to make their case in court as to who should get what and why. This leaves the decisions of how your estate is divided in the hands of a court, and removes all elements of privacy.
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