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Do You Need a New Will? You Just Got a Divorce

Divorces are often complicated and messy. The last things on your mind while you’re going through a divorce are your will and estate plan. However, they should be one of your main concerns. Your divorce will affect your estate plan. Also, depending on your circumstances, it may be worth executing a new will after your divorce.

As a quick note, these rules also apply to annulments and dissolutions of marriage.

Does Divorce Revoke Your Will?

Your divorce will not revoke your will. Your will is still valid and enforceable. Divorce does not mean you will die intestate (without a will).

How Does Divorce Affect Your Will?

While a divorce will not revoke your will, divorce can affect your will in different ways. Specifically, divorce can change the following parts of your will:

  • Your ex-spouse is treated as having predeceased you: If you don’t change your will or execute a new will after your divorce, then all provisions in your will that affected your ex-spouse will be treated as void. Specifically, a court administering your will and estate will pretend your ex-spouse predeceased you. So, for example, if in your will you left your ex-spouse $50,000, your ex will not receive that $50,000.
    • However, if your will says otherwise, then your ex-spouse will not be treated as having predeceased you. For example, if in your will you state your spouse is entitled to the gifts even if you divorce, then they will not be treated as having predeceased you. The provisions to your ex-spouse will not be void, and they will receive the $50,000.
    • Similarly, if your divorce, annulment, or dissolution judgment states otherwise, your ex-spouse will not be treated as having predeceased you. Here, it’s not your will stating you want to provide for your ex-spouse, it’s the court requiring you to provide. If this is your situation, then as in the previous exception, your ex-spouse will still receive the provisions in your will ($50,000, for example).
    • Additionally, a prenup or postnuptial agreement can also affect your will. Because the purpose of prenuptial and postnuptial agreements is to determine property division upon divorce, then the provisions in your agreement will greatly affect your estate plan.
  • Gifts to in-laws are still valid: While provisions to your ex-spouse will be automatically treated as void after your divorce, the same is not true for your in-laws. So, let’s say, in your will, you left your mother-in-law $10,000, your sister-in-law your car, and your brother-in-law some land in Miami. Your divorce will not void the provisions to your mother-in-law, sister-in-law, and brother-in-law. They would still receive the $10,000, the car, and the land.
What Happens if You Remarry the Spouse You Divorced?

Crazier things have happened. What happens if you remarry your ex-spouse? How will your will be affected?

The provisions to your ex-spouse (now new spouse) will not be revived. The provisions that were voided by the divorce will not be effective again after remarriage. This means if you do not change your will after your remarriage, your will won’t provide for your spouse.

Should You Execute a New Will?

This depends largely on your circumstances after your divorce. Let’s look at some hypothetical situations and how they would influence your decision to execute a new will.

  • The Amicable Divorce
  • If you had an amicable divorce, and you still want to provide for your ex-spouse, you need a new will after your divorce. Additionally, even if your will provides for your ex-spouse after a divorce, you may want to change what you leave them. In this case, you need a new will.

  • The Bitter Divorce
  • If you had a bitter and contentious divorce, you may want to just remove all mention of your ex-spouse in your will. If that’s the case, you need a new will. Also, if your will provided for your spouse even after a divorce, and you’ve changed your mind, then you definitely need a new will.

  • The In-Laws
  • Maybe, like the example above, you left some money or property to your in-laws, if you no longer want to include them in your will, you need a new will because your divorce won’t void their provisions.

  • Remarriage
  • Maybe you remarried your spouse! Well, as discussed above, remarriage won’t automatically reinstate the provisions voided by your divorce. You’ll need a new will to provide for your new spouse.

In conclusion, the best course of action is to revisit your will and estate plan after major life events, like a divorce. Our estate planning attorneys at The Estate Plan in Miami are eager to help you review your documents and prepare for the future.

This article is written by Florida attorneys and only considers Florida law in place at the time of publication, which was November 3, 2020. This article should not be relied upon as a substitute for legal advice and one should always consult with an attorney in their state before making any legal decisions.

At The Estate Plan, we take pride in serving our clients with compassion, competence and creativity. After all, we’re all unique. It takes a special comfort and confidence to trust someone to handle protecting one’s family and possessions. We appreciate being that person for so many families. If you are interested in coming in for a consultation, do not hesitate to contact us at (305) 665–8888.

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