Most people know they need a last will and testament—but few people actually have a will. In fact, most studies have shown that less than 50% of American adults have a will. But what happens to your will if you obtain a divorce? Most people know a will needs to be changed when a child is born or a marriage or divorce occurs, but few people follow through.
Fortunately, lawmakers in many states, including Tennessee, have passed laws that prevent a person from collecting under the will of a deceased ex-spouse. In Tennessee, the law provides that after a divorce, any part of a will giving property to the former spouse is revoked. In such a case, the former spouse is treated in the will as having died first. Also, if the ex-spouse is named as the executor of the estate or in some other capacity under the will, that too is revoked.
There are several points to keep in mind when a will is revoked by divorce. First, the remarriage of the parties will revive the will. In other words, if the will was not changed after the divorce and named the ex-spouse as a beneficiary, the ex-spouse would still be entitled to collect under the will if the parties remarried.
Second, even though the ex-spouse is treated as having died first, the ex-spouse’s children would not be entitled to receive the property the ex-spouse would have received had the parties not divorced.
Third, only a divorce or annulment will revoke the provisions in a will giving property to the former spouse. If the parties only receive a legal separation, the will still applies and is not revoked.
There are many factors that must be considered when drafting a will. It is important to keep your will up-to-date and to make changes to your will when circumstances change. Marriage, childbirth, adoption, divorce and changes in financial position are all things that require a will to be updated.
Wills can be complicated. Strict adherence to the law must be observed. It is important to contact a competent attorney experienced in probate and estate matters prior to changing a will or other estate planning document. This is one area of the law where do-it-yourself could prove disastrous. The problem is if you mess it up, you likely will not be around to fix it.