Estate Planning for Divorced Couples

Some marriages end in divorce.  What happens to estate plans that name a former spouse when the couple divorces?  Consider this typical scenario: Mary and her husband amicably divorced years ago. Mary and her now ex-husband negotiated a settlement that divided their property equitably. Recently, as Mary was going through her papers, she realized that her ex-husband was still named as the beneficiary of her will and retirement accounts.

Mary accurately realized she needed to update her estate planning documents as soon as possible. But what if something had happened to Mary before she was able to update them? Would her ex-husband inherit her entire estate, notwithstanding their divorce?

How Divorce Affects a Will

With respect to assets passing under Mary’s will–her probate estate–the answer is simple. Under Virginia law, divorce automatically disinherits one’s former spouse and removes them as personal representatives. The divorce effectively reads your documents as if your former spouse had died before you and it operates as if this occurred without any action on your part.   If you actually want a former spouse to inherit under your will or to serve as the personal representative of your estate, then you need to create a new will, signed after the divorce is final to name them to inherit and/or serve.

So, if you find yourself in Mary’s situation, your failure to update your will post-divorce does not mean your ex will inherit your probate estate.

But what about non-probate assets? Here, the situation is a little trickier.

Divorce and Beneficiary Designations

Similar to wills, upon divorce, Virginia law automatically revokes a beneficiary designation to a now former spouse on a life insurance policy, retirement account, annuity, or similar arrangement that includes a death benefit.  However, many such death benefits are governed by federal law, which preempts (or overrules) Virginia law and does not always provide for automatic beneficiary revocation upon divorce. It is possible that your ex-spouse may continue to be the pay-on-death beneficiary of certain non-probate assets unless and until you file a proper change of beneficiary form with the asset’s legal custodian. The lesson?  If you have not reviewed your beneficiary designations after your divorce, you need to do so asap and make changes as appropriate.

Many divorce settlements require an ex-spouse to maintain a life insurance policy or similar asset that names the other ex-spouse as the beneficiary, usually to ensure continuity of alimony or support payments in the event the insured ex-spouse dies unexpectedly. Such designations are not subject to Virginia’s revocation-on-divorce law.

Divorce and Other Estate Planning Documents

Virginia’s revocation-on-divorce rule also applies to other estate planning documents, such as a power of attorney. As with a will, the statute basically treats your ex-spouse as having predeceased you. In fact, by filing for divorce (or other related actions), the not-yet-ex can lose the authority to act as an agent under a power of attorney.   Filing for divorce also removes the not-yet-ex from the list of people who can make health care decisions if no agent is named under an advance medical directive.  It is best, however, to not expect others to know that a divorce may be pending or has occurred.  If you are recently divorced or in the process of getting a divorce it is a good idea to review and re-draft all of your estate planning documents to account for your new situation.

If you need further advice from an experienced Virginia estate planning attorney, contact Promise Law today at (757) 690-2470 to learn more. We look forward to hearing from you and providing you with the advice and guidance you need.


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