How Filing a Divorce Affects Your Will

Posted: 9 October, 2021

If you are in the process of getting a divorce, you should update your will, trust, or life insurance beneficiaries. This is a critical because you are legally married until the judge signs the final divorce decree.  Which means if you were to pass away before the divorce is final, your ex-spouse may be receive your money or property instead of others you may choose.

For example, your spouse just files a divorce.   This spouse is listed as the beneficiary on your life insurance.  You probably would not want her to receive the life insurance if something happened to you.   Same thing for the home.  You might want your half of the home to go to your brother, now that a divorce has been filed.   Nevada does have a law that may revoke any beneficiaries listing your spouse.  NRS 133 revokes your spouse as your beneficiary.  But then you have the issue of who the property or money should go to.

While going through a divorce, the best idea is to update your estate plan, will and beneficiaries.  Some estate planning documents can be changed immediately, either on your own or with an experienced attorney by your side.

In this article, we discuss the documents you need to update.

Advanced Healthcare Directives

An advance directive is a set of legal documents that explains how you want medical decisions about you to be made.  An advance directive lets your health care team your wishes.  Health care directions consists of a durable power of attorney for health care, and orders for life sustaining treatment.   A power of attorney is a legal document in which you name a person to be your agent to make the decisions.  An order for life sustaining treatment helps describe your wishes for health care providers.

You may not want your spouse to have power of attorney over you.  You may no longer want your them to make critical health care decisions on your behalf.   While you are going through a divorce, you should change your advance documents as soon as possible.

Last Will and Testament

A will tells the courts your wishes for your property and assets after your death.  After a divorce is filed you may want you separate property or your half of your community property to go to someone other than your ex-spouse.

You should take the opportunity to either prepare a new will or change the beneficiaries on your current one.   Nevada does have a law that may revoke any beneficiaries listing your spouse.  But then you have the issue of who the property or money should go to.   It is a better practice to make a change to your will and leave no doubt for the courts.

Insurance Beneficiaries

If your ex-spouse is a beneficiary on life insurance, your IRS, your 401K or pension you may want to change the beneficiary.   If you were to pass away during the divorce your spouse may receive all of these benefits even though you would prefer them to go to others.

Again, under Nevada law a will may automatically be revoked upon the filing of a divorce.   However, we never recommend leaving this for chance.   There can be some interesting outcomes when you do.  We had one case where the divorce decree was finalized.  The husband was left a beneficiary of his ex-wife’s policy.   The ex-wife gets married.   The wife never changes the beneficiary or her will.  She passes away and the ex-husband receives the life insurance.  The new husbands took the ex-husband to court and loses.   The ex-husband receives the life insurance because the wife never changed her life policy.  The law says he was revoked but her act of not revoking left the impression she wanted her ex to receive this money.  Plus, she never changed her will.

Estate Plans & Trusts

A trust is an estate planning tool used to avoid probate, taxes and to control who gets assets after your death. Because of the divorce you may change who receives your assets.

Some trusts, like irrevocable living trusts, cannot be changed. If you are the grantor of a revocable trust, in most cases, you are allowed to revoke or amend your trust as you see fit.

You should be extra careful if you decide to revoke or change the terms of a trust before your divorce is final. These situations can be very complicated, depending on the type of trust and the language in the trust document.  Changing a trust is more complex than changing a will or beneficiary.  Be sure to talk with an attorney.