Updating Your Will After a Divorce

Couples don’t enter marriage with an expectation that the relationship may come to an end, but circumstances and relationships change.

Divorce may become a reality, and it affects areas of your life you may not expect. Though you feel a sense of relief when the process is over, there’s one more issue to address: updating your will & estate plan after divorce.

Attorney Jonathan Breeden is a skilled legal professional who can assist with making the necessary changes to your will after divorce. He has experience with both estate planning and divorce cases, so he has in-depth knowledge of the relevant North Carolina divorce law.

Please call Breeden Law Office at (919) 661-4970, or reach out online to schedule a consultation regarding your situation.

Does a Divorce Nullify a Will?

Under North Carolina’s statute regarding wills, divorce doesn’t revoke the entire document. Per North Carolina General Statute § 31-5.4, dissolving your marriage only affects the provisions in the will that applied to your spouse during your marriage.

If you’ve made any specific bequests of real estate, personal property, bank accounts, or other assets, these are still valid as they pertain to other individuals.

How Does Divorce Affect a Will?

As it relates to your ex-spouse, the specific sections regarding your former husband or wife are revoked by operation of law when your divorce is finalized. The statute uses the language “in favor of,” so the revocation isn’t just limited to assets.

Any power of appointment, whether general or special, is also invalidated. Plus, the revocation extends into other documents as part of your estate plan. If you’ve appointed your spouse as trustee, conservator, or guardian, these provisions are all revoked by your divorce.

Concerning the specific bequests you made to your spouse, they revert back to your estate. They become part of your probate estate to be distributed according to the general bequests. For example, you have a will that gives half of your property to your spouse and half equally to your two children.

If you die without updating your will & estate plan after divorce, the half of your assets that would have gone to your spouse go back to your estate. From there, they are distributed according to the other provisions of the will that remain: split between your two children.

Are Wills Valid After a Divorce?

Though all provisions that are in favor of your spouse are revoked, no other terms of your will are implicated after a divorce. The appointment of your former spouse as executor is invalid, but the person you name as a successor can still act. If your will pours over into a trust, your assets will be transferred over according to your plan.

One item of note is the handling of non-probate assets. You may have a joint ownership interest in property that has survivor rights. This means that, when you die, your share goes back to other owners.

Joint tenancy with right of survivorship is common for couples who own real estate. Other assets, especially life insurance policies, have death beneficiaries. When you pass away, the property goes to the individual you name as designated beneficiary.

Any such assets should have been addressed through the divorce process, so there is a limited impact on your will. However, it’s important to double-check to ensure your former spouse doesn’t remain a joint tenant or death beneficiary.

Do I Need a New Will After a Divorce?

It’s a good idea to revisit your will after any major life event, including divorce. From the information above, you can see that your former spouse won’t get any of your assets or power over your estate. However, you may not be happy with how North Carolina law operates once your assets go back into your estate.

In the above example, you may not want your two children to take the assets that would have gone to your spouse. Perhaps they’re too young or aren’t responsible with money. You may rather dedicate the funds for educational purposes. You don’t have any power to take these actions if you die without updating your will & estate plan after divorce.

Is it Necessary to Have a Lawyer Handle Changes to My Will and Estate Plan?

Though it’s not legally required, there are several reasons you should seek legal help with updating your estate plan. An attorney knows the process of how to change your will after a divorce, which involves several specific requirements.

You must invalidate the first will and execute a new one through a codicil or by writing a whole new will from scratch. The exact language can be complicated. In addition, new documents must be properly witnessed and notarized. If you don’t strictly comply with North Carolina law, your old will remains in full force and effect.