If you have an estate plan in place (even a simple will), your spouse is likely mentioned multiple times. That means if you’re divorcing, you’ll need to review your estate plan as soon as possible to determine what changes you want or need to make and the appropriate timing.
Each estate plan is unique, so you’ll want personalized estate planning guidance as you modify yours. Here, we’ll address a topic that is often of primary concern.
Can I disinherit my spouse – and if so, when?
You can likely remove your spouse as a beneficiary if you choose. However, under state law, they could still claim an “elective share” of your estate if you died before the divorce was final. That’s unless you have a prenuptial, postnuptial or other legal agreement where they give up their inheritance rights.
When the divorce is final, the law removes those rights. It says that “an interest in an asset to or for the benefit of the decedent’s former spouse is void…. The decedent’s interest in the asset shall pass as if the decedent’s former spouse predeceased the decedent.” That means it goes to the contingent (alternate) beneficiary, if there is one.
Therefore, it’s important to make sure your contingent beneficiary is the one you want to receive this inheritance, since probate law will treat your former spouse as though they’re deceased and give their inheritance to that contingent beneficiary if you were to die before you updated your estate plan after divorce. If you still want to include them as a beneficiary after divorce, you’ll need to update your will to specify that.
If you’ve listed your spouse as your designated beneficiary on retirement and investment accounts, life insurance policy or other assets, it’s important to address them individually so they continue to reflect your wishes and comply with the law.
Can the terms of my divorce affect my estate plan?
Another consideration is whether any terms of the divorce require you to provide for your soon-to-be former spouse after you’re gone. This could involve continuing to have a life insurance policy with them as the beneficiary if you’re paying spousal and/or child support, for example.
It’s a lot to think about – and there’s a lot more. Getting legal guidance with your estate plan as you begin the divorce process can help you make the appropriate changes at the right time.