New Will After Divorce?
by Michael F. Calllahan
You need a new Will post-divorce. After your divorce you should review your Will and all beneficiary designations to ensure that you do not unintentionally include a gift to your former spouse. You are no longer married so your former spouse need not be mentioned in the Will at all unless required by your marital settlement agreement.
Most people do not accidentally leave a bequest to their former spouse in the Will. Most divorced persons either have no Will or have replaced or at least revoked the Will that provided for their now former spouse. If you made a Will that left all or part of your estate to your former spouse and have not revoked it by a new Will or otherwise, you should contact a lawyer now! Even if you are in this position, and die, the legislatures and courts of our local jurisdictions have helped you, and your preferred heirs. See Va. Code Sec. 20-111, 20-111.1, 64.1-59; Md. Code, Estates and Trusts Article, Sec. 4-105(4); DC Code Sec. 18-109 and Estate of Roscoe H. Liles, 435 A.2d 379; 1981 D.C. App. LEXIS 355. These statutes generally provide that the judgment of divorce eliminates prior bequests (Maryland) or prior bequests and certain beneficiary designations to the former spouse (Virginia). The Liles case concerned a Will and probably only applies to Wills.
So given all that, is a new Will not necessary post-divorce? Well, a Will is a written document directing the passage of property after the death of the maker of the Will – the “testator.” Among other things a Will addresses who will receive the testator’s property that does not pass outside probate by deed, deposit contract, beneficiary designation or other non-probate means, names the testator’s personal representative and includes many other necessary and helpful provisions. Almost all of the provisions of a good Will are determined by the testator’s family relationships and financial circumstances. Divorce alters both. So if you made a Will based on your family relationships and financial circumstances as they existed before divorce you probably need a new Will prepared in light of your new post-divorce family relationships and financial circumstances.