If you are going through or have recently gotten a divorce, it is crucial that you update your estate plan. If you do not revise your estate plan, unintended beneficiaries may end up inheriting money or property from you. If your will leaves assets to your spouse, and you do not update your will after a divorce, when you die most states will automatically disinherit your ex-spouse. That means that the assets will then go to the next beneficiary in line, which may not be what you intended. If you have gotten a divorce and have not updated your estate plan, a skilled estate planning attorney can help you revise your plans in accordance with your wishes.
Drafting a New Will
Most but not all states agree that your ex-spouse will not inherit from your will if you did not update it after the divorce.
Most wills include language that revokes all previous wills. As noted above, in most states if you get a divorce and do not update your will, your ex-spouse will be treated as if they have predeceased you and thus will not be given assets or be able to be the executor of the will. It is important to note that this is not true in all states. If you live in one of the states that does not automatically disinherit your ex-spouse, they may end up inheriting your whole estate. This is also true if you die before the divorce is finalized.
You should also be aware that even though your ex-spouse may be automatically disinherited under state law, their children and other family members will not be. So, if you have included them in your will but do not update it, they will still be beneficiaries. Finally, if you still wish to leave assets to your ex-spouse even after the divorce, you will need to make that clear in your new will. Some exes may remain close even after a divorce, especially if they are co-parenting. And even if you do not leave them any assets, you may still want your ex-spouse named as the executor of your will.
It is very common for trusts to be part of an estate plan. These will also need to be updated after a divorce. Once again, most states will automatically remove your ex-spouse as the beneficiary of a trust, provided that the trust is revocable at the time of your death. If you have an irrevocable trust with your ex-spouse as a beneficiary, they will still be the beneficiary of the trust even after a divorce.
During or after a divorce, it is important to confirm that your beneficiary designations are as you want them on all of your accounts, insurance, and other estate planning tools. For example, life insurance policies may name your ex-spouse as a beneficiary, so you may wish to update it. It is also prudent for individuals to contact the human resources department at their workplace to make sure that all of their employee benefits are properly updated.
At the very least, you should review all estate planning documents after (or during) your divorce, but you will likely need to update them to ensure that your intentions are satisfied.
Legal Guardians for Minors
Many couples will select someone to be the guardian of their children if they die, and will name this person in their will or trust. You may want to update this if you get divorced. In most cases, if one spouse dies then the children will go to the other spouse/parent if they are fit. However, you may want to name someone else in case your former spouse predeceases you. A knowledgeable estate planning attorney can help you determine the best way to include your wishes in your will or trust.