Do I Need to Update My Will After My Divorce?

February 1, 2013

Do I need to update my will after divorce?

I recently read an article in Dallas Child Magazine encouraging parents to consider securing a Last Will and Testament. The article is available at: http://www.dallaschild.com/showarticle.asp?artid=995

Ms. Mayfield, the author of the article, interviewed Judge Nikki DeShazo prior to writing on the subject and did an excellent job of explaining one of the primary reasons parents should secure a will. I would encourage all readers of this blog to review Ms. Mayfield’s comments for more details; though I will summarize here.

A will is the ultimate divorce decree. When you divorce the Court will issue a decree dividing your property – giving it away, assigning interest, etc. A Last Will and Testament does the same thing when you die. It decrees or orders who will get your stuff. Much like an uncontested divorce proceeding (as opposed to a contentious divorce) a Will lest you decide what will happen, whereas passing on without a Will allows the Judge and the Law to decide. While the law provides for a very distinct set of default rules, that are for the most part fair, the law cannot know your particular family history – have you had a falling out with a family member, is there a particular family member who has always been there on your side through the hard times, etc. Accordingly, while the law may have a standard set of rules that are intended to work in all situations, the rules are not one size fits all.

The crux of Ms. Mayfield’s article is that – If you have children, you need a will. I completely agree with this assertion. However, the article left out one important consideration. WHEN DO YOU NEED TO CHANGE OR UPDATE YOUR WILL? While there are several milestones in life that warrant a review of your Will – child birth, marriage, death of a person named as a beneficiary in your Will, a substantial change in the value of your estate, etc – there is one commonly overlooked reason to review your Will that being Divorce. If you are going through a divorce, you need to review your will and if you are going through a Divorce with children and have no Will, you need to get one immediately.

A Will lets you decide who gets your stuff. More importantly, it lets you make decisions regarding your children such as who manages the property left to the children. Do not underestimate this power. If you divorce, then die – your family (read your parents’) rights to visitation with your children – their grand children – die with you. The natural assumption when a divorced parent dies, is that the children will be cared for by the other parent unless his or her rights have been terminated. Family members of the deceased parent have few if any legal rights to step before the court and ask for visitation, much less custody. While your ex-spouse may have great relationship with your family and may never consider denying grandma or grandpa access, it can and does happen. Giving all your property to your kids via a trust set up in your Will with your own family managing the property is a subtle way of ensuring your family has a part in your children’s lives even after you are gone.

On another note, most Wills state that if the person named in the Will (a spouse, child, beneficiary) dies within a certain period of time, commonly 30 or 45 days, that person is to be deemed to have died before you for the purposes of the Will. This statement has a lot of affect if there are provisions in the Will for care and custody of the children. For example, does your Will state that in the event of your incapacity or death you appoint your mother-in-law as the primary custodian of your minor children? Now that the marriage is ending or has ended, do you still want mom-in-law to have custody.

Divorce is a major event in your life. Divorce changes a lot of things, but you should know, it does not change everything. While a statement in your Will giving your spouse everything can be challenged if you die after divorce without changing your will, why put your family through that obstacle. Changing your Will is not only prudent, it is simple and it does give you the power to make decisions over your children, even after you are gone – regardless of what the custody orders state to the contrary.

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