Revising Your Estate Plan After Divorce

If you don't update your will, trust, and beneficiary designations after a divorce, your ex could inherit from you.

By , Attorney George Mason University Law School
Updated 3/26/2024

Going through the emotional and financial turmoil of a divorce isn't easy. If you're getting a divorce, estate planning might be the last thing on your mind. But after a divorce, you need to take steps to update your estate plan. If you don't, then at your death your assets could be distributed in ways that you neither expect nor want—including to your ex-spouse.

Here are five steps you can take to make sure your estate plan reflects your current life and wishes.

1. Make Sure You Can Legally Change Your Estate Plan

Before you change any of your estate planning documents, you need to make sure you have the legal right to do so.

First, if you have a prenuptial or postnuptial agreement, make sure that it doesn't prevent you from changing any aspects of your estate plan. Your agreement might also entitle your spouse to specific assets in the event of your death. Don't make any changes to your estate plan that conflict with your prenuptial or postnuptial agreement.

Second, it's common for the court to issue a temporary restraining order (TRO) in a divorce case. TROs can be used to prevent the spouses from making changes to their finances—including changes to beneficiary designations or revoking or changing a trust. In some states, a TRO is automatically issued when a divorce case is filed. In other states, a spouse has to request a TRO. If you violate a TRO or hide assets, the court can find you in contempt and issue sanctions against you, including fines, attorneys' fees, and—in extreme cases—jail.

2. Revoke Your Will and Make a New One

Start by revoking your old will (literally tearing it up is the best way) and making a new one. If you don't already have a will, now's the time to make one. It isn't difficult; you can make a simple will yourself, with a good software package or online resource, or you can hire a lawyer.

A will is used for:

  • leaving your property to the people of your choice
  • naming an executor to wrap up your estate when the time comes, and
  • nominating a guardian to take care of young children if it's ever necessary.

All of these choices may be affected by divorce. Let's look at them one by one.

Leaving Property

If you're like most people, if you made a will while you were married, you left everything to your spouse—probably not the result you want now. It's best to start fresh with a new will, naming new beneficiaries and alternate beneficiaries, who would inherit if your first choice didn't outlive you.

In most states, if you get divorced after making a will, any gifts that your will makes to your former spouse are automatically revoked. Usually, the rest of the will is not affected. For example, California law states that dissolution (divorce) or annulment of a marriage revokes any bequests (gifts) that your will made to your former spouse. (Cal. Prob. Code § 6122 (2024).)

But it's not a good idea to rely on state law. Not every state has a law like California's, and laws can change. Also, these laws generally don't take effect until you have a final decree of divorce—if you're still in the divorce process, gifts to your spouse are still valid.

In some states, gifts to relatives of your former spouse are also revoked by divorce. For example, Arizona law revokes gifts in a will made to anyone related to your former spouse by blood, adoption, or affinity (marriage). (Ariz. Rev. Stat. § 14-2804 (2024).) If your state has such a law and your will leaves property to your former spouse's child (your former stepchild), divorce would revoke the gift to the child.

Relying on state law also can create some uncertainty about what happens to the property you left to your former spouse, if state law revokes that provision of your will. The general rule is that the property passes as though your former spouse had died before you did.

So, if your will named an alternate (contingent) beneficiary for that gift, that beneficiary inherits. If you didn't name an alternate beneficiary, but did name a "residuary beneficiary," then that beneficiary inherits. If you don't name a residuary or alternate beneficiary, the property passes under state law, as if there were no will, to your closest surviving relatives.

Those potential complications underscore the importance of making a new will. That way, it will be clear about who you want to inherit and who your alternates will be.

Naming an Executor

If you don't want your former spouse to inherit your property, you probably don't want your ex-spouse as your executor (the person in charge of your estate), either. But a court could appoint your ex-spouse who is named as executor in your will if you don't make a new will.

In many states, divorce revokes the appointment of a former spouse to serve as executor of the will or trustee of a trust. The alternate executor, if you named one in your will, would serve instead. If you didn't name an alternate, the court will use state law to determine who will be executor. Still, don't count on state law—appoint a new executor and an alternate in your new will.

Naming a Guardian for Your Minor Children

A key reason that many parents of young children make wills is to name a guardian to raise their children in the unlikely event both parents die. If you have kids under 18, that's probably one reason you want to make a will.

A court will appoint a guardian to care for a child only if both parents are deceased or unfit. (And courts find a parent unfit only if there is a serious and ongoing problem, such as a history of child abuse or addiction.) If you don't want your ex-spouse to raise your children because you don't think your former spouse is a good parent, it's probably not something you can prevent.

In your will, however, you can name whomever you choose to serve as guardian, in case both you and the other parent aren't available. (It is, thankfully, rare for both parents to be unavailable.) If you feel strongly that the other parent shouldn't have custody of your children, write down your reasons in a letter and attach it to your will. It will at least give the judge something to consider.

3. Review and Understand Your Trust

Many married couples create trusts as part of their estate plans. These trusts sometimes are called "family trusts." A family trust can be revocable or irrevocable.

Revocable Living Trusts and Irrevocable Trusts

The most common type of trust is a simple revocable living trust. A revocable trust can be used to give away your property when you die. You also can use a revocable trust to appoint a responsible adult as trustee to manage property that you want to leave to your children after you die.

Revocable living trusts tend to be more flexible than wills, and they have the benefit of avoiding probate. You also can revoke or change a revocable living trust while you're alive.

After they're created, irrevocable trusts can't be revoked or changed—except in rare circumstances. People rarely use these trusts, and they are most common for extremely wealthy people who are trying to avoid estate taxes.

Revoking a Revocable Living Trusts Created During Your Marriage

You and your spouse might have created a joint revocable living trust while you were married. As mentioned above, you may be prohibited from amending or revoking your trust while the divorce is pending if there's a prenuptial agreement, postnuptial agreement, or TRO. But this doesn't mean you'll be stuck with the joint trust you made with your spouse. Living trusts often are dissolved during the divorce process. The spouses will decide how to separate the trust property in a settlement agreement, or a judge will determine how to divide the trust assets if the case goes to trial.

Irrevocable Trusts Created During Your Marriage

As a general rule, assets transferred to an irrevocable trust during your marriage aren't marital or community property. Instead, the trust is the sole owner of the assets, so they aren't subject to property division in a divorce.

Revoking Your Revocable Trust After the Divorce Is Finalized

As mentioned above, if you and your ex-spouse made a joint revocable living trust, most or all of the assets in the trust probably were divided in the divorce settlement—and the trust has already been revoked or dissolved.

If the trust wasn't revoked or dissolved during the divorce, you should consider revoking it and creating a new one.

4. Update Beneficiary Designations

As important as your will is, it might not cover some of your most valuable assets. Many assets pass outside of a will, to beneficiaries named on paperwork provided by a bank or insurance company.

If the divorce is finalize—or you're not prohibited from changing your beneficiary designations while the divorce is pending—be sure to update your beneficiary designations for:

  • life insurance policies
  • retirement accounts such as IRAs and 401(k)s
  • pay-on-death bank accounts, and
  • transfer-on-death brokerage accounts.

To name a new person to inherit these assets, request new documents from your bank, brokerage company, or employer, and submit them as soon as possible.

Don't assume that state law (or even the terms of a divorce decree) will revoke any earlier designations you made naming your former spouse. Certain "qualified plans," such as 401(k)s, pensions, and employer-provided life insurance policies, are governed by a federal law called ERISA (the Employee Retirement Income Security Act). And ERISA says that a plan administrator must turn funds over to the beneficiary named in the plan documents—no matter what state law says. So, if your former spouse is still the named beneficiary, he or she will inherit unless you change the paperwork.

5. Make New Powers of Attorney and Health Care Directives

Powers of attorney (POA) are an important part of an estate plan. POAs give someone (called an "agent" or "attorney-in-fact") authority to act for you if it's ever necessary. You should have two POAs: one for health care (medical decisions), and one for financial matters.

Financial Power of Attorney

A financial POA gives your agent the authority to handle your finances. People most often use a financial POA to allow their agent to act for them if they are incapacitated. A POA that remains in effect when you're incapacitated is called a "durable power of attorney."

For example, your agent might use a durable financial POA to pay your medical bills, file your taxes, or sell your home. Because your agent will be handling your finances, you want to name an agent you can trust.

In many states, a divorce decree will terminate a POA that appoints a spouse as an agent. In states that don't automatically terminate a POA after a divorce, you probably should consider revoking a financial POA that appointed your spouse as your agent. Whether you revoke a POA or state law terminates it, you can make a new financial POA that names a new agent.

Advance Health Care Directives

Typically, there are two documents that let you control your medical care if you become incapacitated: a living will and a durable power of attorney for health care. Both of these documents might be called an "advance directive" or a "health care directive" in your state—or your state could have one document that includes both a living will and health care POA.

The living will is a written statement that explains to medical providers what type of care you want (or don't want) if you become incapacitated and are in an end-of-life situation. Divorce itself shouldn't affect this document because it doesn't give power to an agent to make decisions for you. But, if your wishes change at any point—including after a divorce, you always can make a new living will.

The health care POA is similar to a financial POA in that you appoint an agent to make decisions for you. A health care agent will have the authority to make decisions about your medical treatment if you are incapacitated. If you are conscious and able to communicate decisions, your agent won't have the power to override your medical choices. And if you've prepared a living will, your agent won't be able to make decisions that contradict your living will.

If you named your spouse as your health care agent, your state's law might terminate the health care POA when your divorce is finalized. Otherwise, you can revoke your health care POA on your own. Either way, it's a good idea to create a new health care POA that names a new agent.

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