How does divorce impact your right to take under a will?

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How does divorce impact your right to take under a will?


Today I’d like to talk a little bit about how divorce can impact your ability to take under somebody’s last will and testament. This is a story about Jack and Diane. You’ve got Jack and Diane were married when they were married. After their marriage, they go ahead and put together a a will. In the will, they make each other personal representatives. Jack is the personal representative in Diane’s will and Diane is the personal representative in Jack’s will. They also leave the residuary of their estate to each other. They leave their stuff, usually most of their stuff or all of their stuff to the each other spouse. So that’s the way the wills were written. And so then a few years later, Jack and Diane decide to go ahead and get divorced. Now Jack and Diane have a pretty decent relationship. Even after the divorce they continue to be friends, and they go out on dates.

Jack and Diane still care about each other and they still wanted to take care of each other. But what happens is that Diane passes away. And so Jack goes ahead and says, well, I’m supposed to be the personal representative under the will and I’m supposed to get all Diane’s stuff. And then there’s a dispute with Diane’s kids. They say, “I don’t think so.”

Jack says I’m in the will, and the kids say, well, you know there’s a law and the law is that if you are to take under a will and you end up getting divorced after the will was written, then any proceeds that are supposed to go to you under the will are revoked under the law.

So what would have protected Jack and Diane for their to have their wishes actually come true? Even if they were divorced and wanted to leave their stuff to each other what they should have done was after the divorce, write another will.

If the will was written after the date of the divorce, then the law that triggers which say that if you have a benefit under a will and you get divorced, any benefit is hereby revoked. So the way that they could have resolved the situation, which a lot of folks do not think about would be just to go ahead and write another and specifically state it is not my intention to have my ex spouse written out of my will. Do you think that this doesn’t happen? Well, I can tell you that in the last month I received two phone calls from folks inquiring about this factual scenario. I’ve seen this also happen a lot of times in life insurance proceeds, but that will not be affected by the divorce settlement or the divorce agreement.

So if Jack and Diane had life insurance, even after the divorce, if they remained beneficiaries on their life insurance, it would still go under the beneficiary designation. So there you have it.

Once a divorce happens, you are written out of the will by operation of law. Some people like to say, well, the law says that what you did was you predeceased your spouse.