Where Legal Advice is an Art

 

Will a Divorce Revoke My Will?

 

By Ronald A. Fatoullah, Esq. 

 

            How does a divorce affect a will? The good news is that a divorce will revoke all revocable bequests to a former spouse and any of your appointments of your former spouse.  However, you cannot rely on this automatic revocation alone. It is always recommended that you review your estate plan after a divorce, or even better, once you have begun to contemplate a divorce. 

            While married, many of us have formal or informal estate plans involving our spouse.  We may have a will which leaves our assets to our spouse and names him/her as our executor.  We may have beneficiary, “in trust for,” or “transfer on death” designations on our bank and brokerage accounts for the benefit of a spouse. We may also have named our spouse as an agent under a Health Care Proxy and Power of Attorney. The law is clear that a divorce (with final decree or judgment of divorce) will by itself revoke all those designations made in favor of the former spouse. This rule also applies with a final decree or judgment of annulment or separation.  The law treats the former spouse as if he/she had predeceased you. If the divorced parties were to remarry each other, the remarriage would revive all the designations made in favor of the spouse once again.

            This automatic revocation by a divorce helps those who may not have taken the steps to remove the former spouse from any designated interest in his/her estate. However, you should not rely on the revocation and should take affirmative steps to review your estate plan and make any necessary adjustments. The revocation treats the former spouse as if he/she had predeceased you, which means that your contingent designations come into effect, if you have them. You must review everything to ensure that you have contingent designations and that the contingent beneficiaries still align with your wishes. For example, on a bank account, you should make sure there is a contingent beneficiary - otherwise the account becomes a probate asset that may require court approval to access. Additionally, you should ensure that you have a contingent agent named in legal documents, such as a Health Care Proxy and Power of Attorney. It is very important to note that the law only revokes the benefits of the former spouse, but not any of his/her relatives. Therefore, if you have named a relative of your former spouse in any capacity under your estate plan and you no longer want the relative to be a part of your plan, you must make the necessary changes to remove him or her.  It is also advisable to affirmatively remove your former spouse from all designations, because third parties (i.e. banks and other financial institutions) are not liable if they distribute funds to your former spouse unless they have actual notice of the divorce.  For example, if your former spouse was named as an agent under your Power of Attorney, make sure that you revoke the prior power of attorney and bring the revocation and new power of attorney to the bank to be updated on your bank records.

            Finally, be aware that this automatic revocation only takes effect when you receive a final decree or judgment of divorce (or annulment or separation).  Therefore, it is critical for you to review and revise your estate plan during the pendency of your divorce and even beforehand.  A soon to be ex-spouse making health care decisions is probably not desirable in most cases, which is yet another reason why you should have your estate planning reviewed when considering a divorce.

Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts, wills, and real estate..The law firm can be reached at 718-261-1700, 516-466-4422, or toll free at 1-877-ELDER-LAW or 1-877-ESTATES. Mr. Fatoullah is also a partner with Advice Period, a wealth management firm, and he can be reached at 424-256-7273.

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