Updating Your Will Post-Divorce: All You Need To Know

After a divorce, it’s essential to revisit one’s estate plan and update one’s will to reflect their current wishes. The divorce itself doesn’t affect the contents of the will, which means that ex-spouses, ex-stepchildren, and former in-laws may receive assets that the deceased would prefer other beneficiaries to inherit. Post-divorce will updates can prevent this outcome and ensure the individual’s wishes are followed after their death.

• Post-divorce, individuals should review and update their last wills and other estate planning documents to prevent assets from passing to their former spouse.
• By drafting a new will, the divorced individual can ensure their current intentions regarding property inheritance, the named executor, and the guardian of minor children are followed. 
• Individuals have the legal right to amend their wills as needed to ensure these documents reflect their wishes, not just after a divorce but following any life change.
• While divorce doesn’t invalidate a will, certain will provisions may become void upon divorce.
• Divorcing spouses can change their wills before the divorce is finalized, but the process may vary depending on state law and other circumstances.
• If an ex-spouse contests a will, the court will consider various factors, including divorce settlements.
• Divorced parents should designate a guardian for their minor children in case the ex-spouses cannot raise them together.
• Failing to update one’s will after divorce can lead to unintended consequences and disputes over estate assets.
• Individuals should seek professional legal help to navigate the complexities of updating their wills post-divorce.

Can an ex-spouse challenge a will after divorce?

Yes, an ex-spouse can contest the will. When this happens, the court will evaluate various factors, including divorce settlements, to determine the outcome.

What happens if an individual doesn’t update their will post-divorce?

One’s will outlines one’s intentions concerning asset disbursement, among other matters, upon one’s death. Failing to update one’s will after a divorce may mean assets are disbursed according to outdated intentions. Not updating the will could lead to unintended consequences, such as assets going to the ex-spouse instead of new family members or other suitable beneficiaries.

Improving One’s Will After Divorce 

When an individual is going through a divorce, they may not give much thought to their estate planning. This difficult period may be filled with intense feelings that range from sadness and despair to rage and even hope, as well as overwhelming life changes. 

Because divorce is such a significant life transition, individuals in the process of dissolving a marriage should review their wills as they look ahead to the next phase of life. 

Addressing one’s estate planning and updating one’s will to reflect the current circumstances is a crucial step in finalizing a divorce. 

If one’s estate plans were established or amended during the marriage, the divorcing spouses must update their estate plans. Should they neglect to keep their estate plans up to date, one individual’s assets could pass to their former spouse in the event of their death. 

If the deceased’s former spouse happened to remarry, the ex-spouse’s new spouse and their kids may even inherit these assets. 

The easiest approach to update a will after a divorce is to revoke the previous one and write a new one.

How a divorce impacts a will depends on state law. In some (but not all) states, divorce revokes any gifts left to a former spouse in a will that was created before the divorce. The gift awarded to the ex-spouse in the will may instead be allocated to the residuary beneficiary or an alternate beneficiary. 

Rather than relying on whether or not the law in individual states revokes such gifts, divorced individuals should draft a fresh will that expresses their current desires. 

This new will should specify the following: 

• The person or entity the individual wants to inherit their property
• The executor of the estate 
• The guardian of any minor children

Why Should I Update My Will After Divorce?

Typically, the cornerstone of an estate plan is a will. A person’s will may designate people to assume significant responsibilities and specify what the individual wants to happen to their possessions and financial assets once they die. 

Often, a person no longer wants their ex-spouse to inherit property from them or hold a position of trust in their future decisions or the management of their estate. 

Ultimately, an individual’s will should represent their desires. Individuals are free to amend their will whenever they choose, and their ex-spouse is not entitled to know the contents of a will updated after divorce.

Does Divorce Invalidate a Will?

No, divorce usually does not void or invalidate a will. 

Certain arrangements made in the past that listed an ex-spouse as an executor or gave them an inheritance could become void upon a divorce, depending on state law. All other clauses of the will remain in force.

Can You Change Your Will Before Your Divorce Is Final?

Generally, individuals have the legal right to amend their wills or estate plans at any moment. 

Individuals who are in the process of divorcing may amend their wills even while they are still married. However, individuals may not have full freedom to rewrite their wills until the divorce is finalized. 

Depending on laws and regulations that differ across states, individuals may be restricted in the actions they can take to disinherit their spouse (even a soon-to-be ex-spouse), transfer assets, or change beneficiaries on retirement accounts during divorce proceedings. In some instances, an individual may have to submit court documents and provide notice to their soon-to-be ex-spouse before they can modify their wizls. 

Ultimately, there are some changes individuals who are going through divorce just can’t make until the divorce is finalized.  

What’s the Best Way to Change Your Will After Divorce?

Most initial wills created during a marriage leave the spouse everything or nearly everything. If the will was created before the marriage but amended, it, too, most likely gives the spouse all or almost all assets. 

Individuals should start over with a fresh will rather than trying to amend the will after a divorce. They should physically tear up the previous will, which no longer reflects their wishes.

If the beneficiaries and substitutes the individual has chosen don’t work out, after a divorce or at any time, they should start over with new ones.

Can an Ex-Spouse Challenge a Will?

Yes, ex-spouses may be able to challenge a will. That does not mean, however, that the former spouse will end up with their ex’s assets. 

A former spouse or partner’s will may be contested by an ex-spouse or even an ex-de facto partner. In some states, however, one must meet certain criteria to qualify as an “interested party” before they can contest a will. 

The court’s assessment of several criteria, such as the divorce settlement terms or any other agreements between the deceased and their ex-spouse, will determine whether the challenge is successful. 

Guardian for Your Minor Children

If an individual and their ex-spouse cannot raise their children together, someone should be designated in their will as a guardian to care for those children. 

Generally, responsibility for the child only goes to the designated guardian if both parents are deceased or otherwise unable to care for the children. If only one of the divorced parents dies, the ex-spouse will typically raise the children. 

Consequences of Not Updating a Will

Once the divorce proceedings are over, dealing with more legal matters and considering the bleak prospect of one’s untimely death are among the last things an individual wants to do. However, if one does not amend their will following a divorce, the following outcomes could potentially occur:

• A former spouse may attempt to obtain estate assets according to the terms of the previous will.
• The ex-spouse or a family member could remain in place as the estate executor or guardian of a minor child.
• Any stepchildren of the deceased may still be able to receive a gift previously left to them in the will, even if the deceased individual was no longer married to the former stepchild’s parent. 
• In some states, even if the deceased intended for their now ex-spouse to serve as their executor or guardian, this may not be possible.

If the will is never updated and, under state law, the divorce voids certain inheritances, it’s possible that not all of one’s property and assets can be disbursed as intended. Parts of the estate may instead fall under intestate succession rules, which apply when a person has died without making a will. 

Additionally, not updating one’s will after a divorce may mean unintentionally forgetting to include beneficiaries, like a new partner or child, to whom the individual wants to leave their assets. 

Why Seek Professional Legal Help?

Updating your will post-divorce involves legal complexities. It’s important that individuals who are divorced seek professional legal assistance to ensure that their estate planning accurately reflects their current wishes and helps prevent disputes and unintended consequences.

In Summary

After a divorce, revising one’s will is vital after a divorce to ensure their assets go to the intended people or entities. Failing to update one’s will following a divorce can lead to complications and legal disputes that draw out the process of disbursing assets and may even risk the wrong beneficiaries inheriting the deceased’s assets. Seeking professional legal guidance can make updating a will post-divorce go smoothly.

Contact Us at Betsy A. Fischer

For expert legal assistance in updating your will after divorce, contact Betsy A. Fischer. Our team will guide you through the process, ensuring your wishes are protected and your assets are distributed as intended.