Navigating The Complexities Of Wills And DivorceNavigating Wills and Divroce

Divorce can be a complicated situation. Determining how to divide assets, custody, and issues such as child support and spousal maintenance can make a divorce contentious. The last thing many people want to think about during a divorce is their eventual death, yet it is necessary. Updating your Last Will and Testament can be an important step in separating your future from the past you shared with your former spouse. Wills and divorce can each bring a number of legal considerations into play. If you are ready to update your will due to divorce, you may want to speak with one of the experienced attorneys with Roulet Law Firm, P.A. at our Minnetonka, MN office at (763-420-5087) or our Venice, FL office at (941-909-4644) to learn more about how you may be able to update your will and other parts of your estate plan.

Should You Change Your Will After Divorce?

Neither Florida nor Minnesota law specifically requires updating a will after divorce. However, it is recommended that people who get a divorce update their will to ensure their wishes are clear. Both Florida law and Minnesota law treat an existing will as if the former spouse pre-deceased the person who wrote the will. This means that if someone does not update their will after divorce, the will remains valid except for provisions for the former spouse.

Other than removing provisions relating to an ex-spouse, other reasons to update a will after divorce include:

  • Bequests to former spouse’s family: If an individual intended to leave assets to their former spouse’s family, such as parents, siblings, or children from a previous marriage, they may no longer wish to leave assets to those people. However, the laws that ensure an ex-spouse does not inherit from an existing will do not apply to any provisions for the ex-spouse’s family. If an individual wants to ensure their former spouse’s family does not inherit, they must update their will.
  • Changes in assets: When an individual is married and writes a will, they include all the assets they own at that time. In a divorce, both Florida Statutes and Minnesota Statutes state they are equitable distribution states. The court will divide marital assets equitably between the spouses. This means there may be assets included in an individual’s will that are awarded to their former spouse during the divorce. While this will not make the will invalid, it may confuse both the people named in the will and the probate court. This kind of confusion could in turn lengthen the probate process, causing avoidable stress to the decedent’s loved ones.

Do You Have To Wait Until Divorce Is Final?

If an individual wants to change their will, they can do so at any time, including in the middle of a divorce. Florida and Minnesota law both allow people to change their will during a divorce. In fact, in some cases it may be recommended that a divorcing person update their will as soon as they begin divorce proceedings. This is because if an individual were to die before their divorce could be finalized, their existing will would be used in probate court and their spouse would inherit as if the divorce process had never been initiated.

In many cases, it can be advantageous for individuals to draft new wills that clearly indicate their former spouse is being omitted intentionally. However, it is also important to know that according to both Minnesota law and Florida law, the spouse may still be able to take from the estate under both states’ elective share laws if the divorce is not final. Even if spouses are intentionally left out of the will, these laws may entitle them to a share of the estate, since the division of assets that normally takes place during divorce proceedings may not yet have taken place. This one of the more confusing circumstances that may arise with wills and divorce.

What If You Want To Leave Something to an Ex-Spouse After Divorce?

Although wanting nothing to do with the other person after a divorce is common, sometimes an individual still wants to leave something to their former spouse even though they have divorced Additionally, in some cases individuals may be ordered by the divorce documents to leave specific assets to their former spouse. In either circumstance, the individual preparing the will must explicitly state that they are leaving these assets to their ex-spouse after divorce.

If an individual does not make it clear that they are choosing to leave assets to their ex-spouse after divorce, those provisions will be revoked and treated as if the former spouse pre-deceased them. If you want to leave assets to a former spouse and wish to ensure that this intent is clearly indicated and legally enforceable, consider contacting an experienced estate planning professional at Roulet Law Firm, P.A.

What Other Documents or Provisions Should You Update During or After Divorce?

A will is one of the most pressing documents to update during or after a divorce, but the will is not the only document an individual should consider. Several other estate planning documents may also stand in need of review after divorce.

Update Beneficiary Designations

Beneficiary designations are not voided after a divorce in either Florida or Minnesota. This means that if an individual has listed their former spouse as beneficiary on bank accounts, retirement accounts, life insurance policies, or other assets that have named beneficiaries, the former spouse will still receive those assets upon the individual’s death. Therefore, many people may wish to update the beneficiary designations for these assets. In some cases, the documents may be updated during the divorce.

Make Provisions for Guardianship of Minor Children

If an individual has minor children, they may want to consider including a provision in their will for guardianship of those children. Even if their former spouse is the biological or adoptive parent of the children, if an individual strongly believes that their ex-spouse is not fit, it may be a good idea to include this provision. While this does not guarantee their wishes will be honored, it does ensure that those wishes will be made public during the probate process, and clearly indicates their preferences regarding guardianship for courts to consider.

Check Other Estate Planning Documents

A will is just one component of a comprehensive estate plan. Estate plans may also include a power of attorney, healthcare proxy, revocable trusts, and advance healthcare directives. These documents may have designated the former spouse as the person to make decisions, as a trustee, or as a beneficiary. Individuals should go over all these documents to ensure they are updated to reflect the divorce.

Do You Need To Update Your Will After a Divorce?

Wills and divorce can be complex and confusing, even when they are kept separate. When attempting to navigate the divorce process while keeping their will updated, many people feel overwhelmed. You do not have to navigate the complexities of wills and divorce entirely on your own. If you are ready to update your will during or after a divorce, call our Minnetonka, MN office at (763-420-5087) or our Venice, FL office at (941-909-4644) to learn more about your legal options.


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Chuck Roulet
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Nationally Recognized Estate Planning Attorney, Author, and Speaker
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