What Happens to My Will If I Get Divorced?
- Hilary Leitch, Esq.
- Nov 7, 2020
- 2 min read
You are a responsible adult and made a will. Like most married individuals, your will gives everything to your spouse if you happen to die before they do. But life happens, and now you find yourself divorced. What now? What if you die before you get a chance to redo your will?
This isn’t an uncommon situation. It’s so common, in fact, that the state has a statute that specifically addresses this situation.
Under Virginia Code Section 64.2-412(B): A divorce or annulment revokes any gift of property made by will to the ex-spouse. Unless the will expressly provides otherwise, any provision giving a general or special power of appointment to the ex-spouse or nominating the former spouse as executor, trustee, conservator, or guardian is also revoked. Any gift(s) or other provisions that are revoked in this situation pass as if the ex-spouse predeceased the testator [person whose will is at issue].
Whew. You can breathe easier.
What if you have a fancier estate plan, one that involves a trust? What then? Virginia’s got you covered: Unless the trust instrument expressly provides otherwise, if a person creates a revocable trust and then gets divorced/the marriage is annulled, any gifts to the ex-spouse are revoked, and the ex-spouse is treated as if he/she had predeceased the creator of the trust. Any powers of appointment created in the trust or the naming of the spouse as a fiduciary (trustee, guardian, etc.). is revoked upon the filing for divorce/annulment or for legal separation. (This provision regarding trusts only applies to divorces that occur after July 1, 2018.)
And since we are in the realm of “life happens,” let’s not forget the last part of this statute: If the spouses get remarried to each other without updating their wills/trusts, the revoked provisions are revived, as if the couple had never gotten divorced.
No other change of circumstances will automatically revoke a will or trust (incarceration, domestic violence, or the like does not affect the terms of a will or trust).
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