Yes, after a divorce, you must amend any Last Will and Testament (“Will”) that has been prepared and executed. Why? It is exceedingly rare that a Will would be prepared by a married person that did not bequeath assets and property to their spouse. However, now that you are divorced, presumably, you do not want your ex-spouse to get any assets or property in the event of your death. As such, it is necessary to revoke all prior Wills (and codicils). If you don’t revoke a Will that gives assets and property to your ex-spouse, your ex-spouse will receive those assets and property if you die. Put another way, a divorce does NOT change your Will or somehow make your ex-spouse unable to receive bequests under your Will.
Even if your divorce did not end in bitter acrimony, and even if you don’t mind that your ex-spouse is set to receive assets and property in the event of your death, you should still read your Will and evaluate whether changes are in order. Here at The Law Offices of Thomas Stahl, our Maryland and D.C. family law attorneys would guess that you will want to make changes.
In some circumstances, it may be enough to simply revoke a Will (by tearing it up in front of witnesses). However, it is much better to revoke a prior Will and substitute an amended and updated Will.
Note that, in Maryland, many Wills are filed with the local County Register of Wills for safekeeping. If that has been done with your Will, whether you merely revoke your Will or revoke/revise it, you need to contact your Register of Wills and have the old Will withdrawn from safekeeping.
There are other Estate Planning documents that need to be amended after a divorce. Many used trust documents to accomplish the same results as a Will. Thus, the beneficiaries of any trust must be amended to remove the ex-spouse. Matters are more complicated if the trust is a joint trust. Issues related to any joint trust should be handled as part of the divorce. Make sure that you retain experienced and competent Maryland/D.C. divorce attorneys for advice and guidance regarding joint trusts. The court’s final Order should reflect the resolution of those issues.
Similar attention should be paid to any other sort of document that lists your ex-spouse as a beneficiary.
These include changing the named beneficiaries on various instruments like life insurance policies, 401(k) plans, other retirement and death benefit policies, pay-on-death financial accounts, etc. Note that, in some divorce cases, some Estate Planning issues are negotiated and/or subject to Order of the relevant divorce court. For example, it is not too unusual for a court to Order life insurance to be purchased (or maintained) for a parent that has child support payment obligations. In most cases, the court Orders the life insurance beneficiaries to be listed as the children. Thus, be aware that if there is a court Order affecting your Estate Planning, that court Order will take precedence and must be followed. Here is more discussion on why you need to amend your Estate Planning documents after a divorce.
In addition, all financial and property powers of attorney must be revoked. Otherwise, your ex-spouse will have power over your finances and property in the event of your incapacitation.
Finally, consider how to modify any health care power of attorney and/or living will. If your health care power of attorney is not amended, then your ex-spouse will have the power to make medical decisions on your behalf. This is a personal decision, of course. And you may still want your ex-spouse to be able to visit you in the hospital. But, a set of conscious and informed decisions should be made about these matters after a Maryland/D.C. divorce is finalized.
Maryland and D.C. Trust and Estate Planning Attorneys
If you are thinking about establishing a trust or need estate planning documents drafted, contact the Maryland and D.C. trust and estate planning lawyers at The Law Offices of Thomas Stahl. We have the experience and expertise you need. Schedule a consultation today or call us at (410) 696-4326 or (202) 964-7280. We have offices in Columbia, MD, and Washington, DC.