Posts Tagged ‘wills’

Will my Divorce Automatically Change my Will?

Many people wonder about the effect of a divorce on their will. Will your former spouse still be entitled to your grandmother’s fine china? Will your estate still be bound to donate $10,000 a year to your ex’s favorite charity?

Under Maryland law, a divorce automatically revokes all provisions in a will that relate to the former spouse. Following divorce, any benefits originally intended for the spouse will instead go to residuary beneficiaries. The law is a bit less clear about what will happen to any provisions in a will that benefit those related to a former spouse, or those that are listed as beneficiaries at the request of a former spouse.

In Friedman v. Hannan, 412 Md. 328, 987 A.2d 60 (2010), the highest court in Maryland affirmed a circuit court decision revoking provisions in a will that left all of a husband’s assets to his former wife and her family. The court held that under Maryland law, a divorce automatically revokes all provisions in a will that directly benefit a spouse, and may also revoke any provisions that are motivated by the marriage and relationships incident to the marriage. However, it is important to note that the court did not set forth any specific test or guidelines to determine whether a particular provision included in a will because of a former spouse’s relationship, or at the request of the ex-spouse, would automatically be revoked upon divorce. In such situations, a trial court would make a decision about the revocation of  a provision based on facts presented to the court at the time the will goes into effect.

If you get divorced, you have two options -

1. Make no changes to your will and hope for the best—There is no law requiring you to make any changes to your will following a divorce. Without revising your will, provisions leaving anything to your former spouse will automatically be revoked upon your divorce. Yet, if you decide not to change your will, it is possible that your estate will be bound to carry out the desires of your former spouse, as contained in your will. In the absence of revisions, your will may be challenged, and a trustee would have to present your wishes in a trial court, with the final determination in the hands of a judge.

2. Revise your will to ensure the proper beneficiaries—Following your divorce, you may wish to remove all references to your spouse in your will, as well as any provisions that benefit your former spouse’s family or interests. Even if you have residuary, or fallback, beneficiaries included in your original will, some simple revisions will clarify your wishes. Keep in mind that if you would like your former spouse to remain a beneficiary, you may need to revise your will so the provisions related to your ex-spouse are not automatically revoke

It is a good idea to consult with an attorney following a divorce, or any significant change in personal status, to determine whether you need to make changes to your will or any other beneficiary forms including (but not limited to) insurance policies and IRAs. We here at Delaney & Keffler, LLC will take the time to fully explain and discuss your options and so that you can feel confident that your wishes will be carried out by your will. Contact us today at 410-535-3476  (FIRM) or for a free consultation.