The Effects of Divorce on an Estate

If you’re seeking a divorce in the Commonwealth of Virginia, among the myriad of changes that you’ll need to make to reestablish your identity as a single person is the amendment of your will and any trusts or durable powers of attorney that you may have established prior to the divorce. In most instances, the divorce nullifies any provisions that have been made for the spouse. However, not all states have this provision, and it’s possible that your will could be executed in a state that doesn’t. In this case, your ex-spouse may still be legally entitled to property that you no longer intended for him or her to have.

A will or testament is the best, most reliable way for you to let your survivors know exactly what your wishes were before your death. For this reason, a will should be updated as frequently as necessary to ensure that the allocation of your estate is done in accordance with your plan. For instance, assume that you had set aside certain marital assets for your spouse at one time, but after divorcing never reassigned those assets to another party by changing your will. You are later deceased and your will is executed in a state that voids the ex-wife’s or ex-husband’s claim. However, because there are no instructions in place for the allocation of this property, it goes in residuary and has to be distributed according to the law. So even if your ex-spouse never tries to make a claim, at least a portion of your assets are distributed as though you had died intestate (without a will).

In order to guarantee that your will represents your actual final wishes, you should alter it whenever:

• You get divorced
• You become legally separated
• You get married
• You live in a state that recognizes common law marriage and your arrangement would qualify
• You cohabitate with someone who you want to include in your will
• You have a child with someone
• You adopt a child
• You become the step-parent or legal guardian to someone else’s children
• You move to a state with different probate and estate laws
• You change your mind about the allocation of your estate, your beneficiaries, et cetera.

In addition to amending your will to reflect your post-divorce wishes, you should also review any trusts or durable powers of attorney with your lawyer. These instruments could be particularly fragile when the ex-spouse that you once selected as your trustee or agent no longer holds your confidence.

Before making any changes to a will, trust, or power of attorney in Virginia, or anywhere else, you should first consult a reputable estate-planning lawyer in Fairfax Virginia today.