Is My Will Void If I Get Divorced?

POSTED ON: December 21, 2021

Major changes in your life—such as marriage, having a baby, moving out of state, or divorce—should prompt a revisit to your current will. It is important to revise your will at these times, in order to ensure your estate planning is up to date.

Is My Will Void If I Get Divorced?

If you neglect to update your estate plan after a divorce, everything you gave to your ex in your original will could very well add up to a nice post-divorce inheritance. Even in the most amicable divorces, it’s probably not what you had intended. Yet, as reported in the article “Rewriting Your Will After Divorce” from Investopedia, people do this.

Luckily, however, Louisiana law provides that if you are divorced after the execution of your Last Will and Testament, the provision leaving the ex-spouse property is revoked.  See Louisiana Civil Code art. 1608(5).  Likewise, any appointment of the ex-sposue to an official capacity in the will, such as an executor, is also deemed revoked.

Your will could provide, however, that your spouse’s legacy would remain intact even in the event of a divorce, although this would be a rare provision in a will.

So the short answer is “no” to the question “Is my will void if I get divorced?”  Only the legacy to the ex-spouse is revoked, and the ex-spouse is removed from any representative capacities to which he or she is appointed.

However, this should give the reader only partial comfort.  If what you left the ex-spouse is revoked, then who would receive what your ex-spouse was originally left?  That portion could pass under the laws of intestacy as it would if you didn’t have a will at all.  This may not be what you intend.

Further, if you live in Louisiana, and your have real estate in other states, the law of that state will likely control the disposition of the real estate, not Louisiana.  So if that other state does not have a similar law to Louisiana, your ex-spouse might not be written out of the will with respect to the property in the other state after all.

Also, keep in mind that there is not a similar provision that relates to trusts in Louisiana.  Therefore, if you have a living trust with your ex-spouse, a reformation or revocation of the trust should be part of the divorce decree or community property settlement.

So if your will leaves something to your surviving spouse and you are currently in the process of separating and divorcing, it’s time for a new will (or a trust), as soon as possible, even though your will is not void if you get divorced.

Also, don’t forget about assets passing outside of the will.  Assets with beneficiary designations, like life insurance, investment accounts and some retirement plans, go directly to the beneficiary listed on the account regardless of what your will might say!  If the beneficiary is your ex, you should also make those changes as soon as possible.

Even though your will is not void in the event of divorce, your estate plan must also update any property gained or lost during the divorce. If any assets are specifically identified in your will, be sure to update them.

The executor (the person named in your will to oversee the distribution of assets) probably has to be changed as well. If you had previously named your ex-spouse, it’s time to name a new executor.

Your will is also used to name a tutor (guardian) for minor children. If you have children with your ex, you will want to appoint a tutor (guardian) in case both you and your ex are not alive to raise them. If you die unexpectedly, your spouse will raise them, but you should still name a tutor. If a surviving parent has a serious problem, like addiction, child abuse or incarceration, naming a tutor in your will and documenting the reasons you believe your ex is an unfit parent may be a deciding factor in how a judge awards custody.

A will can be updated by writing a codicil, which is an amendment to a previous or a prior will. However, since there may be many changes to a will in a divorce, it is better to tear up the old one—literally—and start over. A prior will is revoked by physically tearing up and destroying the original and including language in the new will that it will revokes all prior wills. Your attorney will know how to do this properly.

The bottom line is that your will is not void if you get divorced.  But you will likely have to draft another will in its place anyway.  Also, your ex may have the legal right to challenge your will. This is why an estate planning attorney is so necessary to create a new will. In a divorce situation, the use of an experienced estate planning attorney can make the difference in your ex receiving a windfall and your new spouse or children receiving their rightful inheritance.

To learn more, read: Do I Have to Give My Husband’s Children from First Marriage Anything When He Dies? and No Kids? What Happens to My Estate? and I am Concerned That My Son-in-Law will get My Estate and What is Louisiana Forced Heirship?

BOOK A CALL with Ted Vicknair today to find out more about how you can plan your future for your and your family’s security.

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