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  • Allison Roberts

Do I Need a New Will After a Divorce?

Updated: Nov 14, 2023

Once a Marital Settlement Agreement is signed and the Judgement of Divorce is entered by the Judge, what do you need to do as far as your Will? The answer is, as is so often the case— it depends.

Certainly, if your now ex-spouse was the beneficiary (the person who receives all your estate assets) under your existing Will, you will need a new Will. If you die while your now ex-spouse is still named beneficiary, there may be legal recourse to avoid this result, but do not create this conflict and issue for your estate. Get a new Will as soon as practical after you are divorced.

Often times in a Will, money may be held in Trust for minor or young adult children. If you named your children the beneficiary of funds held in trust and your now ex-spouse was the trustee (the person who decides when and how much of the funds held for the children can be released), you may want to change the trustee. But you may not if there is a strong enough co-parenting relationship.

Many assets may have a beneficiary form or designation for assets that pass “outside of the estate”, such as life insurance, a 401(K), or an annuity. This means even if you have a new will and the now ex-spouse has been removed from your Will, if the ex is still named on the beneficiary form of a non-probate asset, your estate will have a problem. You will want to update the beneficiary form post-divorce on these non-probate assets.

What About in Cases of a Second Marriage?

And an increasingly familiar scenario, what if you are now in a second marriage, both parties come to the marriage with pre-marital assets, and both come to the marriage with children from a prior relationship? What if there are also joint children or step-children that you want to include? It may be your intention to see your children receive 100% of your estate, not spouse #2. Is it legal to “disinherit” your current spouse with a will that leaves him/her nothing? What if spouse #2 claims the “elective share” after being excluded from the Will? The dreaded “It depends” is the answer to all these questions.

These and other scenarios where family law and estate planning intersect are important to understand. Let us talk it all through with you to see what documents you may need to update and how to best accomplish your intentions. Call us at 908-237-3098 with any questions or to schedule a free 30-minute consultation.

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