Divorce can be a time of confusion and complexity. In addition to any emotional or other stress, your divorce can impact both your and your ex’s will. Therefore, it is important to understand what that impact may be and what to do to ensure that your wishes are carried out in the event you die.
If my ex doesn’t change their will following divorce, what happens?
If your ex dies after the two of you divorce, you may wonder whether any provisions about you that were decided before the divorce would be honored. The short answer? No.
In the state of Washington, any provisions in a will that are “in favor of or granting any interest or power to the testator’s former spouse or former domestic partner are revoked, unless the will expressly provides otherwise.” Unless they added you to the will after the divorce or the will says otherwise, you are not entitled to anything that may have been previously written into the will for you.
After a divorce, any provisions in a will regarding a former spouse are invalid and are treated as though the former spouse died. Just like you cannot receive an asset if you have passed away, you cannot receive an asset if you have divorced.
Does my divorce agreement supersede my ex’s will?
Before your divorce is finalized or a settlement is reached, you enter a gray area with your spouse regarding your will. Though you are in the process of getting divorced or are separated, you are not legally divorced yet. Absent a new will or appropriate language in a finalized separation agreement, if you or your spouse dies during this gray area period, your assets will be passed down according to inheritance rights.
In Washington state, inheritance rights would give everything to your spouse or children in the event of your death. If you are in the process of divorcing and are not officially divorced, your soon-to-be-ex is not legally your ex and, as such, would receive any assets as if they were still your spouse.
Should your ex die while the divorce proceedings are going on, you would similarly receive any assets like you were still married. If you do not want this to happen, you should take steps in order to protect yourself and your assets, such as creating a new will.
This is a good idea to protect assets that are clearly not community property but, rather, separate property. Keep in mind that you cannot give away what is not yours. In other words, if you are not the unequivocal owner of an asset or do not receive it in your divorce once it is finalized, bequeathing it in your will is meaningless.
For example, if your ex’s will addresses specific assets that were already disposed of in the divorce agreement, this can create conflict. Imagine that your ex’s will states that a vacation home is to be bequeathed to an uncle, but you received that vacation home in the divorce. Your ex’s uncle may be angry that he is not actually entitled to what your ex’s will says. However, the divorce overrides that initial will, which may be difficult for the original beneficiary to understand or accept. Your ex could not give them that property because it is no longer theirs, even though their will says it is.
Consider this second example. Your ex-spouse has the title to your marital home, to which you may be entitled a share upon its sale at a future date following the finalization of the divorce. However, your ex’s will states that the house will become the property of someone else — perhaps their new spouse. The divorce agreement, again, would prevail because they cannot give away what they do not actually have.
Similarly, if you are entitled to a portion of the marital home after divorce pursuant to your divorce agreement, but the house is in only your ex’s name, and your ex-spouse dies, you will have to put a lien on the property in the event your ex’s beneficiary goes to sell it. However, the problem is that without a lien already in place against the property for your share, the heir could potentially sell the house from under you before you get such a lien secured.
Also, keep in mind that your CR2A settlement contract is as binding as a court order. In such a settlement, you and your ex come to an agreement out of court regarding issues related to your divorce. Indeed, this can be a shorter, less expensive, and less stressful alternative to litigation. Court orders can take a period of time to go into effect or even be produced, from days to months, even though getting a CR2A typically takes less time than going to court. However, should your CR2A create conflict with your existing estate plan or intentions, problems will inevitably arise.
For these reasons and a multitude of others, it is critical to have safeguards in place at the time you sign your divorce settlement agreement to ensure your assets are protected. The best course is always to make sure your estate plan lines up with your divorce agreement, and to make sure that your divorce agreement has language addressing inheritance rights. It can prevent headaches and possible legal challenges during an already stressful time.
What happens if my ex dies before fulfilling their spousal support and child support obligation?
In the event that your ex should die before fulfilling their monetary obligation to you, you can negotiate with them to cover their spousal support obligation with a life insurance policy. You may be expected to do the same if you are the paying spouse. Child support, on the other hand, is not secured by life insurance and ends with death. Negotiating to ensure that spousal support is covered by an insurance policy needs to happen at the same time as the other issues of the divorce are discussed and settled, so be sure to talk to your family law attorney about this.
Do I have any say over how my ex handles their estate plan?
You may want to have a say in how your ex handles their will or other aspects of their estate plan. However, in a nutshell, legally, you have none. Again, you cannot control what your ex does following your divorce, which is why taking the precautions mentioned above can serve as helpful protections for you. The best way to protect yourself, your assets, and your children is to have your own estate plan in place. It can afford you the flexibility to make decisions about the people and assets that are important to you, especially in contemplation of and in the aftermath of a divorce.
Take the following situation as an example. If you have young children and you pass away before your ex, your children’s other parent would still have parental rights, assuming the right was not taken away from them. If your ex does not have an estate plan or otherwise does not designate a guardian for the children and then also dies, this can leave your children in a bad situation. However, if your estate plan specifies a guardian in the event of your ex’s death, your choice (unless challenged) would prevail and there would be a plan in place for your children. Even if you and your ex both completed estate plans and listed different guardians, it is still better to have more information about who the two of you think would be good caregivers for your children, than to have no information at all.
At a minimum, your will can give you agency over your assets, protecting them for yourself during your lifetime should you become incapacitated and for your heirs after you die. Though having an estate plan can be helpful for handling many conflicts, particularly in the wake of divorce, it is good practice to have one regardless of marital status and revisit it for a legal checkup with every life passage or every three to five years, whichever is sooner.
Find a Seattle family law attorney today.
Divorce complicates many issues, including the provisions in your will. But if you take the proper precautions and understand the complexities that you are likely to encounter, you can better handle challenges that come your way and protect yourself, your heirs, and your assets.
At Elise Buie Family Law, our team of Seattle family law attorneys prepares you not only for divorce but for the life you intend to lead after it. If you have any questions about how your divorce agreement can affect your existing will, call us today.
