After a divorce, you’re left with the task of altering your will to align with your new situation. This typically means excluding your ex-spouse from the will and making changes accordingly.
Here, we’ll review the tasks involved with changing your will after a divorce.
Considerations For Changing Your Will
First, recognize that creating a new will is likely the best choice after a divorce. This will allow you to specify new beneficiaries to inherit your estate. If you’ve previously invested in estate planning, you should change your estate plan as well.
Note that the laws in your state will generally revoke all gifts that you made to your ex-spouse in your will automatically. In this case, the remainder of your will would be left unaffected. The property formerly left to your spouse would be left to an alternate beneficiary, if applicable, or to the person deemed appropriate by state law.
Despite the fact that state law will likely revoke your ex-spouse’s right to inherit your assets, it’s still the right choice to draw up a new will. This will provide complete security in the recipients of your assets, while leaning on state law could open up loopholes in the probate process.
Consider Your Prenuptial or Postnuptial Agreement
Before altering your will, also consider your prenuptial or postnuptial agreement, if you have one. This agreement may give your spouse a right to certain assets upon your death, as well as outline guidelines for distributing assets and debts after divorce. There may be aspects of your prenuptial or postnuptial agreement that need to be taken into account as you make a new will.
How To Alter Your Will After A Divorce
Name New Beneficiaries For Property Previously Left To Your Spouse
Prior to the divorce, you likely left the property to your spouse in your will. Now, after the divorce, you’ll need to name a new beneficiary, or beneficiaries, to receive those assets.
When you name new beneficiaries after a divorce, be sure to keep a record of the designations that were changed. This record should be included in your divorce files.
Keep in mind that beneficiary designations can’t be altered while the divorce proceedings are still in the works. The divorce must be finalized for these changes to be made.
Name A New Personal Representative and New Powers of Attorney
If your spouse was named as the personal representative in your will, you’ll likely want to give someone else that designation after the divorce. The personal representative in your will is given the power to manage your estate after your death. When you make a new will, appoint a new personal representative, as well as an alternate.
All estate plans include powers of attorney, typically one for medical issues and one for financial issues. Your power of attorney is granted the authority to make decisions for you in the case that you’re no longer able. In your new will, name new powers of attorney to withdraw this right from your ex-spouse.
Revise Beneficiaries Stated in Other Legal Documents
Some assets, such as retirement accounts, life insurance policies, pay-on-death bank accounts, and transfer-on-death accounts, have documentation separate from your will. The beneficiary designations in these documents may override the contents of your will.
So, be sure to request new paperwork for these assets from the institutions that manage them (i.e. your bank). Update your named beneficiaries in these documents, as well as in your will, after a divorce. Otherwise, your ex-spouse may have a right to them according to ERISA, the Employee Retirement Income Security Act, which applies to qualified plans, such as a pension or 401(k). Under this federal law, the plan must transfer funds to the beneficiary named in the paperwork, regardless of state law.
Note again that for these types of assets, you likely won’t be able to change named beneficiaries until the divorce is finalized.
Specify A New Guardian For Minor Children
If you have minor children with your ex-spouse, you probably can’t prevent him or her from gaining custody of your children in the event of your death. But, you can name an alternate guardian in your new will.
If you believe your ex-spouse to be unfit to parent your minor children, you can specify this in your will and provide evidence, such as court records or police reports. In this case, you would also need to provide a person that you’d like to become the guardian of your children in your absence.