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The Effect Of Divorce On Your Estate Plan

by Tara Frame

Shortly after you were married, you had your estate plan prepared, including your last will and testament, your power of attorney and your health care directive, which left your entire estate to your spouse and named your spouse as your power of attorney and health care agent. Since then, you have been divorced. Upon the entry of a Judgment of Divorce, Maryland Estate & Trust 4-105(4) provides that a will may be revoked “by an absolute divorce of a testator and his spouse or the annulment of the marriage, either of which occurs subsequent to the execution of the testator’s will; and all provisions in the will relating to the spouse, and only those provisions, shall be revoked unless otherwise provided in the will or decree.”

Of course, this provision does not apply if you are separated but not yet divorced. Further, only those provisions relating to the ex-spouse are revoked. Therefore, if you have not named successor beneficiaries in your will, your estate would be distributed pursuant to the laws of intestacy, or as if you did not have a will at all. If you are separated but not yet divorced, your spouse may receive your entire estate upon your death.

This provision in the Maryland code does not apply to non-probate assets, or assets that are not part of the estate. If you have financial accounts, such as CDs, IRAs, 401(K)s, annuities, POD accounts or life-insurance policies, or have assets held in a revocable trust, that name your ex-spouse as the beneficiary, your ex-spouse will receive the funds in those accounts upon your death. The fact that you are now divorced has no effect on those beneficiary designations.

Likewise, if you named your ex-spouse as your power of attorney or health care agent, he or she will make important decisions regarding your finances and medical care in the event of your incapacity, even after your divorce. In most cases, this is not your intention.

If you have been separated or divorced, it is imperative that you review and revise your estate planning documents. You should review and revise your will and the beneficiary designations on all accounts that have a beneficiary named, as well as your power of attorney and health care directive. Not doing so can lead to very serious and unintended results.

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