Does Divorce Invalidate a Will? What You Need To Know
Divorce is a significant event that involves multiple changes not just to our personal lives but also to our legal standing with the people we want to provide for and protect after death.
Amid the multiple issues we work through during the divorce process, it’s easy to overlook the importance of updating or creating an estate plan. In this discussion, the estate planning and divorce attorneys in Goodyear, Arizona, with Lincoln & Wenk, want to discuss what happens to a will after divorce and how to ensure you have protected your estate plan.
Impact of Divorce on a Will in Arizona
Arizona law doesn’t invalidate your will as a result of divorce. However, the law does impact certain provisions that involve former spouses.
According to Arizona Revised Statutes (A.R.S.) § 14-2804, upon the dissolution or annulment of a marriage, any revocable dispositions or appointments of property made to a former spouse are automatically revoked. That means that any bequests or appointments — like naming your ex-spouse as executor — in favor of your former spouse effectively become nullified upon divorce.
The remainder of the will stays valid. However, the statute directs a probate court to interpret it as if the former spouse died first to exclude them from benefiting or serving any fiduciary role under the will.
Revocation Upon Divorce
You need to understand what happens to a will after divorce, which Arizona law expressly covers. Specifically, A.R.S. § 14-2804(A)(1) declares that divorce:
- Revokes any revocable disposition or appointment of property made by a divorced person to their former spouse in a governing instrument.
- Revokes any provision conferring a power of appointment on the former spouse.
- Revokes any nomination of the former spouse to serve in a fiduciary or representative capacity, including roles such as personal representative (executor), trustee, conservator, agent, or guardian.
These legal revocations are automatic. However, they will not apply whether a will or other governing instrument provides the automatic revocation should not apply. Application of the statutory revocation can also be subject to a court order or contract relating to the division of the marital estate that overrides the revocation upon divorce.
The statutory revocation extends to relatives of the former spouse, effectively removing them as beneficiaries or any fiduciary positions designated in the will.
Impact on Inheritance and Beneficiary Designations
Beyond the will, divorce automatically affects various beneficiary designations and inheritance rights.
Life Insurance Policies and Retirement Accounts
In addition to covering what happens to a will after divorce, A.R.S. § 14-2804 also provides that if you designated your ex-spouse as a beneficiary on your life insurance policy or retirement account, the law nullifies that designation upon divorce, unless the court’s order provides otherwise.
Make sure you keep your designations updated when appropriate to speed up payments to your beneficiaries.
Joint Tenancy and Community Property With Right of Survivorship
Arizona state law also provides that divorce severs interests in property held as joint tenants with the right of survivorship or as community property with the right of survivorship. The title transforms by operation of law into a tenancy in common.
That means that upon death, your share of the subject property will not go to your ex-spouse but according to your estate plan.
Again, the court’s divorce decree can override this provision, making this another area where it is crucial to combine divorce and estate planning strategies.
Role of the Executor and Probate Considerations
The person you designate to administer your estate according to the terms of your will takes on the critical role of the executor of your will. Because of the automatic termination of your ex-spouse in a previously executed will, creating a new will is imperative to make sure your executor will be someone you select rather than a replacement chosen by a probate court.
That selection process often involves delays and disputes among people competing for the appointment, which you can avoid with an appointment of your choice in a new will.
Strategic Considerations for Estate Planning Amid Divorce
What happens to a will after divorce is part of the problem, but you’ll find other issues you must make sure you cover.
Review and Revise Estate Planning Documents Promptly
After divorce proceedings begin, review all your estate planning documents, including wills, trusts, powers of attorney, and beneficiary designations, as soon as possible. Work with your divorce attorney to determine whether you may make changes before your case is complete.
Reassess Fiduciary Appointments
If you designated your former spouse in fiduciary roles — like executor, trustee, or agent under a power of attorney — consider who you want to fill those roles under current circumstances.
Consider the Timing of Changes
As stated above, be very mindful of certain legal constraints during divorce proceedings. Arizona law normally imposes an automatic preliminary injunction upon the filing of a divorce case. This typically orders both parties to not make certain changes to property or beneficiary designations without court approval.
Consult with your attorney to make sure you know exactly what is permissible and when.
Communicate Intentions Clearly
If your ongoing estate plan will include your ex-spouse in any way, take careful steps to make your intentions clear. Use specific language to override the statute that covers what happens to a will after divorce otherwise.
Seek Professional Legal Guidance
Working through the complex interaction of estate planning and divorce law calls for competent legal assistance. Work with an experienced firm that handles both family law and estate planning to make sure you address all the legal issues correctly and protect your wishes.
The Importance of Timely Estate Planning Updates Related to Divorce
As we discussed, you must obey Arizona law and any other court orders related to your divorce that place temporary restrictions on making changes to your estate planning documents.
However, once your attorney confirms that you are past any applicable restrictions, delaying updates often leads to unintended adverse consequences, including:
- Unintended beneficiaries. Even with the automatic revocation upon divorce rules, failing to update beneficiary designations can result in unwanted distributions.
- Legal complications. Outdated estate planning documents can lead to legal disputes among surviving family members or others competing for control or access to your estate.
- Probate delays and expenses. Inconsistencies between your current intentions and outdated documents can lead to prolonged and expensive probate proceedings, delaying the distribution of your assets and depleting your estate through unnecessary legal fees.
Additional Considerations for Estate Planning After Divorce
In addition to what happens to a will after divorce, we’ve listed some additional critical issues to discuss with your divorce and estate planning attorneys below.
Addressing Guardianship for Minor Children
A divorce does not typically affect your parental rights directly. However, it’s essential to revisit your estate plan to ensure that you nominate a trusted individual as guardian in the event of your passing and your ex-spouse’s incapacity or death.
Protecting Your Children’s Inheritance
You should set up an appropriate trust in your will or a separate document to preserve and protect assets for your minor children. With proper drafting, you’ll be able to name the trustee of your choice to manage and protect their assets until the time and manner you want to pay them over to them.
Updating Powers of Attorney and Advance Directives
You may have named your former spouse as your agent in a durable power of attorney or health care directive. Avoid granting them ongoing control over your finances or medical decisions by updating these documents to appoint a new individual of your choice.
Reviewing and Modifying Trusts
If you previously created a testamentary or revocable living trust that included your former spouse, consider amending or revoking the trust depending on your current estate planning goals.
Ensuring Asset Protection and Business Succession
In addition to considering what happens to a will after divorce, also take into account any businesses you own. Properly structure your estate plan to protect your business and pass it down according to your wishes.
Take Control of Your Estate Plan as Part of Your Divorce Process With Lincoln & Wenk
The attorneys with Lincoln & Wenk provide both family law and estate planning services in Arizona. This allows our firm to provide comprehensive legal support during and after your divorce. If you need assistance with creating or updating a will and other estate planning documents and protecting your assets through the divorce process, our experienced attorneys will assist at every step of the process.
Divorce brings significant and often unexpected changes to your financial and legal situation. Failing to update your estate planning documents can leave behind unwanted consequences. This makes understanding what happens to a will after divorce a critical part of protecting your assets, securing your children’s future, and honoring your wishes.
Contact Lincoln & Wenk online or call us at (623) 294-2464 to schedule a consultation at one of our offices in Phoenix, Peoria, or Goodyear, Arizona. We’ll help you navigate the complexities of the divorce process and estate planning so you can move forward with peace of mind.