What if Your Ex-Spouse Survives You – What Happens in My Will

If you are legally separated or divorced but haven’t changed your will, your ex-spouse may either inherit some of your property or, at least, make trouble if he or she survives you.

State laws differ. Many states regard property left to an ex-spouse as if he or she died before you, so it falls into your residuary, what remains after all other beneficiaries get their gifts. Alternatively, the court has your property pass to your heirs under intestate succession, as if there was no will.

Under some state laws, if you get divorced after you’ve written a will, the spouse is automatically eliminated as a beneficiary when the divorce is final, though he or she may still inherit other assets by operation of law or statute. Under other state laws, the will is automatically revoked and you need to write a new will, or risk dying intestate.

Since state laws vary, the disposition of property can be further complicated when a divorce occurs in one state, but the laws of another state govern the estate plan or beneficiary designation.

Given the complexity of the laws, you should change your will upon divorce, or even upon legal separation. If the law regards your spouse as having predeceased you, you probably want to control who gets your property. More importantly, your ex-spouse may decide to contest the will, delaying the probate process and costing your estate a lot of money to defend.

And you should consult an estate attorney, especially if you live in Pennsylvania, where you are considered legally married until the judge signs the final divorce decree and there is no such thing as legal separation. This means that if you die before the divorce is final, your soon-to-be ex is still considered your spouse for the purposes of your estate and is entitled to claim the spousal share of 1/3 of the assets. If you willed your entire estate to your spouse, and failed to change the will, your spouse gets everything. If you do change your will before the divorce is final, you can hope that your almost ex-spouse gets only the spousal share. The original will is valid even if the divorce proceedings have been going on for 3 years and you’ve been separated for ten!

Case Studies: What Happens in My Will If Your Ex-Spouse Survives You?

Case Study 1: John’s Residuary Gift

John and Sarah got divorced a few years ago but never updated their wills. In John’s will, he left his residuary estate to his ex-spouse, Sarah. Unfortunately, John passed away unexpectedly. Since they were divorced, many states consider Sarah as if she died before John. As a result, John’s residuary estate falls into the hands of his other beneficiaries, causing Sarah to lose her inheritance.

Case Study 2: Jane’s Revoked Will

Jane and Michael were in the process of getting a divorce when Jane passed away. Jane had written a will years ago, naming Michael as the primary beneficiary. However, in some states, a divorce automatically revokes any provisions in the will that benefit the ex-spouse. Due to this legal provision, Michael was no longer entitled to inherit from Jane’s estate.

Case Study 3: Interstate Complications

Lisa and David divorced in one state, but Lisa moved to another state without updating her will. Unfortunately, Lisa passed away in her new state. The laws of the state where Lisa divorced regarded her ex-spouse as having predeceased her. However, the laws of her new state don’t recognize this provision. As a result, Lisa’s estate plan faces complications, and her assets may not be distributed according to her wishes.

Case Study 4: Pennsylvania’s Unique Scenario

Emily and Robert were going through a divorce in Pennsylvania. Pennsylvania law considers couples legally married until the divorce decree is signed, without the option of legal separation. Emily passed away before the divorce was finalized, and her will hadn’t been updated to remove Robert as the beneficiary.

In Pennsylvania, Robert is entitled to claim the spousal share of Emily’s assets, regardless of their separation. The delay in finalizing the divorce and updating the will exposes Emily’s estate to potential conflicts and unintended consequences.