When spouses divorce, they generally need to modify their estate plans if they have executed such documentation. For example, if someone has given their spouse power of attorney (POA) over their health care, as is common, they will likely want to choose someone else in the wake of a decision to divorce.
Changes like this can be made before a divorce is final because there’s nothing that requires a person with that authority to be someone’s spouse. Other changes, like inheritances, should wait until a final divorce decree is issued and a couple is no longer legally married. That’s because Kentucky law mandates certain protection for legal spouses during and after marriage.
For example, a person can’t prevent their spouse from claiming a portion of their assets while they’re still legally married unless their spouse waived their inheritance rights in a prenuptial or postnuptial agreement. Even if they cut them out of their will, someone’s spouse spouse has the right to “renounce” that will and claim the elective share they’re entitled to under Kentucky law.
What happens when the divorce is final?
Once a divorce is final, that divorce decree revokes any “disposition or appointment of property made by the will to the former spouse.” It also removes the former spouse as “executor, trustee, conservator or guardian, unless the will expressly provides otherwise.”
Some people never get around to modifying their estate plan – at least to those post-divorce modifications. So what happens if your ex-spouse is one of those people and passes away before updating their estate plan?
Unfortunately, even if your ex planned to still include you in their will, if they didn’t get around to codifying that in their estate plan or somewhere in the divorce agreement, you could be left with nothing. Further, even if they wanted you to stay on in some fiduciary capacity like executor or trustee of a trust, without amending the estate plan to state that you were to continue in that capacity, those roles would be taken by any alternates they named. If they didn’t have alternates, the probate court would make the appointments.
While most people don’t want to deal with estate plan modifications during and immediately after divorce, it’s important to do so. Otherwise, the law determines what happens. Ultimately, if your ex-spouse’s estate is in probate or about to be, it’s smart to get legal guidance to address any questions or concerns you may have, given all that is at stake.
