Getting Divorced? Have You Reviewed Your Estate Plan?
Posted by Martin Heller Potempa & Sheppard, PLLC on January 11, 2019
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If you’re getting divorced, you most likely have all types of questions. Of course, there are the usual concerns about child custody, support payments, and equitable distribution. Meanwhile, you should speak with your lawyer about your estate plan. What happens before the divorce is finalized? After the decree is signed, is your will immediately void?
No doubt you already know that divorce is stressful. In fact, one expert study considers it second only to one other life event. Ironically, the Holmes-Rahe Stress Scale lists the death of a spouse as number one. All things considered, love and marriage create their own set of emotions. Death and divorce produce others.
What if you become incapacitated and unable to take care of financial or medical decisions? A power of attorney and a living will are crucial in such situations. Think for a moment. Do you really want the spouse you are divorcing to be in charge? The possibility is there – if you have no estate plan or – you have one that names your estranged husband or wife.
Estate Planning After the Divorce
After the divorce is finalized, it makes sense to meet with an attorney to discuss proposed changes in beneficiaries. Meanwhile, you should know that Tennessee law does address the validity of wills naming former spouses as beneficiaries at TN Code § 32-1-202.
Take this example. Sally and Jim are married for ten years before they divorce. Early on in their marriage, they both executed simple wills naming one another as sole beneficiaries. Within weeks of their divorce, Sally passes away. The couple had no children. Jim attempts to probate the will and is shocked when Sally’s parents object. Although they are not named in the will, they are legally their daughter’s next of kin.
How is this possible? Under the law, “the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse.” Of course, this also means that Jim cannot act as the executor of his former wife’s will.
In some circumstances, former spouses may still want to name one another as beneficiaries. This would require an update to any will made before the couple’s divorce.