Why Do I Need a Will? (Part II)

August 12, 2011

Authored by: Kim Civins

(Please click here to see Part I of this series, entitled:  “Why Do I Need a Will?”)

If you divorce, you may need a Will (or an update to your existing Will) to prevent your ex-spouse from receiving assets at your death.

Here is a follow up to my post earlier this week.  In this recent article posted at AOL’s DailyFinance site, the author discusses the contents of Amy Winehouse’s U.K. Will.  The late Amy Winehouse had an ex-spouse, and the author mentions that English law may allow an ex-spouse to receive property bequeathed to him or her under their former (now deceased) spouse’s Will even if the divorce occurred after the Will’s execution.  This Forbes.com article implies that even if she had died without a Will at all, English law may look favorably upon an ex-spouse’s position and allow them to inherit.  Fortunately for Winehouse’s parents and brother, she had prepared a new Will post-divorce which effectively cut out the ex-husband in favor of them.

Here in the U.S., jurisdictions vary as to how a divorce affects a pre-divorce Will which includes the now-ex-spouse.  In Georgia where I practice, any provision for a spouse made in a Will executed prior to divorce is nullified as Georgia law mandates that the ex-spouse is treated as predeceasing the deceased spouse (unless the Will specially contemplates the divorce).  That concept applies to ex-spouse appointments as personal representative or trustee too.  If there is no Will, Georgia law does not permit an ex-spouse to receive assets.

This also brings to mind beneficiary designation issues.  It is a fact that state law differs on the point of whether an ex-spouse can still receive assets under a life insurance, retirement plan, or other beneficiary designation if the deceased spouse never got around to updating those beneficiary designations post-divorce.  Some states allow the ex-spouse to still receive the asset, some treat the ex-spouse as predeceasing.

The moral to the story is this:  upon divorce, don’t necessarily assume that some state statute will cut your ex-spouse out for you.  The law can differ from state to state on these issues, but it is a good idea if a divorce is looming to make sure that estate issues are covered.