A Will directs the passage of property after the death of the maker of the Will and names the testator’s personal representative. Wills are revocable – they can be modified or revoked by the testator so long as he or she is alive and has testamentary capacity. Most of our divorce clients arrive in one of two situations – they have not made a Will or they have made a Will that leaves all their property to their spouse and names their spouse personal representative of their estate. Most of our divorce clients have a lot going on – it’s not the best time for calm thoughtful reflection on how they want to take care of those they love in the event of their death.
If you are separated and contemplating or pursuing divorce, circumstances have certainly changed since you decided to leave all your property to your spouse and name him or her as your personal representative. Divorce is a process, it takes time. Unless there is an early settlement it can be years from separation to date of final divorce. We recommend clients in this situation consider amending or revoking their Will.
What about those persons who are separated from their spouse and have not made a Will? If you die without a valid Will, the state has rules governing who gets your property and who has priority for appointment as your personal representative. In most circumstances in the Washington, DC area, the state’s rules put the surviving spouse in charge of your estate. If you have no children, your surviving spouse will receive all of your probate estate. If you have children, his or her share will be one-third in DC and one-third in Virginia if your children are not the surviving spouse’s children, one-half in Maryland, or all in Virginia if all of your children are the surviving spouse’s children. We recommend clients in this situation consider making a Will to avoid these outcomes. Note, however, that statutory spousal protections usually make it impossible to ensure that your estranged spouse takes nothing from your estate.