Generally, you need to get a Will (or update your existing Will) if you get divorced.
Why? Because, if you don’t have a Will, or if you have a Will that was made during your marriage, then your former spouse (“Ex”) may still receive assets or authority.
First, to calm a fear many people have: if you are divorced and die without a Will, your Ex will not inherit anything from you. They are no longer your legal heir and will not receive property.*
But, as we have discussed before, if you do not have a Will, then anyone can be named as the Administrator of your estate and anyone can be named as Conservator of your children.
This includes your Ex.
If you don’t have a Will, then you don’t have input into these decisions. If you get a Will, then you do.
If you have a Will that was made during your marriage, and then if you get divorced, the situation is more complicated. Depending on how the Will is worded, gifts to your Ex may be invalidated.
However, again depending on how the Will is worded, gifts made to your Ex may still be valid, and the person you just divorced may receive assets from your estate.
Also, your old Will may name your Ex as the Executor of your estate and as the Conservator of your children’s inheritance.
Obviously, many divorced people would not be okay with this. The majority of our divorced clients are not comfortable with this possibility.
To see whether your existing Will still gives your Ex assets and authority, have a probate attorney review it. It may be fine. Or you may need to get a new, Will or simply update the one you already have.
To recap: if you are divorced and don’t have a Will, your Ex won’t inherit, but still may have authority over your estate. To have input into this situation, you need a Will.
If you are divorced and have a Will made during your marriage, then your Ex may receive assets and authority, depending on how the Will is worded. To avoid this situation, you may need to revise your Will.
*However, if you are in the process of getting a divorce but it is not finalized, then your spouse is still your spouse and still your legal heir, and probably will inherit some of your stuff if you don’t have a Will. If you are in the process of getting a divorce and do not have a Will, it might be a good idea to call a probate attorney ASAP. You can get a Will while you are in the process of getting divorced. That Will can exclude your soon-to-be-Ex and can still be valid after the divorce is final.
Photo by Tim Foster on Unsplash.
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The statements in this blog are generalities, and exceptions exist. And, as always, this post is not legal advice. If you have any questions about this information, please contact us.