Divorce and Estate Planning

Divorce can nullify certain factors of your estate plan, particularly those directly associated with your former spouse. For example, in a lot of jurisdictions, a divorce may automatically nullify any stipulations in your will that are going to favor your former spouse, unless your will expressly states otherwise. Nevertheless, this doesn’t mean you should rely on these automatic revocations. A comprehensive review and update of your estate plan are crucial to reflect your present intentions and legal standing. The following are some circumstances of divorce and estate planning.

The Following are Some Commonly Asked Questions About Divorce and Estate Planning

Keep Reading to Learn More.

1. What Is Going To Happen To A Will Following Divorce?

In the occurrence of divorce, a divorced individual’s Will stays valid, but the former spouse is taken out as a qualified estate beneficiary.  Nevertheless, legal separation does not dissolve the marriage (unless it obviously states otherwise) and additionally does not make the spouse ineligible as a beneficiary.  That is to say, if a couple is separated, but not divorced yet, the will stays valid as if there was no separation.

Provided a final divorce decree has been recorded, the former spouse is ineligible from any fiduciary position designated in the Will like personal executor, trustee, or guardian.  Nevertheless, a newly devised Will can be signed to include the former spouse back in.

2. What Is Going To Happen To A Revocable Living Trust Following Divorce?

In the likelihood of divorce, some state law treats revocable living trusts likewise to Wills.

In cases of a joint revocable living trust, each spouse is going to be addressed as having passed away before the other.  If one or each spouse passes away prior to the trust being dissolved within the bounds of the divorce settlement, each former spouse’s portion of the trust (half of community property in addition to any separate property) would be allocated to the beneficiaries as if there was no living spouse.

Through individual property trusts, the former spouse is ineligible as a possible beneficiary of the trust.  The former spouse would also be withdrawn as a possible successor trustee.  When the trustor wishes to retain the former spouse as a possible successor trustee and/or beneficiary, then the trustor is required to sign a restatement or revision of the trust to ensure this intent.

3. Are Powers Of Attorney Automatically Revoked Upon Divorce?

Following divorce, each spouse becomes incapable of serving as agent for the other spouse’s health care or financial POA.  The POA documents remain valid, nevertheless, if a proxy agent is disposed to serve.  When a spouse still wishes to name his or her former spouse as an agent, a new POA document must be signed.  As a reasonable matter, both spouses should sign new POA’s following the divorce in order to do away with any misinterpretation.

4. What If A Divorced Individual Fails To Withdraw The Former Spouse As Beneficiary Of An IRA?

A.R.S. Section 14-2804(A) excludes a former spouse as beneficiary of an IRA, but this circumstance can be messy.  The IRA custodian is going to likely treat the former spouse as beneficiary should the custodian have no knowledge of the divorce.  Although the custodian intends to adhere to state law and rule out the former spouse, there is usually a case for a former spouse to challenge the matter in court.  Eventually, there is a debate that the IRA owner intended to retain their former spouse as beneficiary in spite of the face that they had gotten divorced, particularly when there is an extended period of time between the divorce and the IRA owner’s passing.

5. What About Pension, 401(K), Profit Sharing, And Other ERISA Plans?

ERISA is in reference to the federal law overseeing federal retirement plan accounts.  A.R.S. Section 14-2804 is not going to apply to ERISA programs like pension, 401(k), profit sharing, and other federal retirement plans.  Therefore, the beneficiary designation on-file with the program administrator is in control.  The US Supreme Court has ruled that program administrators may depend exclusively on the beneficiary designations.  As a consequence, a former spouse remains as beneficiary of one of these programs until the program participant presents a new beneficiary designation.

6. Is A Former Spouse Automatically Ineligible As Beneficiary Of Life Insurance?

Yes.  Nevertheless, a divorced individual may want to – or in a lot of cases be required to – designate a former spouse as beneficiary of life insurance policies.  This requires presenting a new beneficiary designation to the insurance carrier.  Otherwise, state law is going to automatically remove the former spouse as a qualified beneficiary.

7. What About Pay-On-Death, Transfer-On-Death And In-Trust-For Designations?

A former spouse is automatically withdrawn as an eligible beneficiary of an account with a POD, TOD, or ITF designation.  Nevertheless, these types of accounts need to be updated sooner than later to prevent unauthorized collection by a former spouse upon the passing of the account owner. The financial institution could allocate the funds without validating marital status.

8. What Is Going To Happen To Property Divorced Spouses Owned As Joint Tenancy With Right of Survivorship?

In the likelihood of divorce, any property held as joint tenants with right of survivorship or community property with the same rights necessarily changes to tenancy-in-common.  Meaning that the property is no longer going automatically go to the survivor.  Instead, the deceased individual’s interest in the property is going to be subject to probate.

Source: 

1. 1. 1. “Divorce and Estate Planning” Retrieved on December 11, 2025 from https://www.tomboumanlaw.com/effect-of-divorce-on-estate-plan.html

Ogborne Law, PLC In Scottsdale, AZ

Discussions about child custody issues are always difficult during a divorce. While there is no way to make them easy or comfortable, you can find ways to work together. The collaborative divorce process helps with tools and professionals to make child custody and other decisions a little more manageable. By working together as a team, you’re able to make the decisions that are best for the kids.

Collaborative divorce can make these challenging times more manageable. It requires you to work with your spouse at a time when you have decided you need to go your separate ways. When it comes to child custody, though, you want to do all you can to make the right parenting decisions. Collaborative divorce can help create pathways for you to cooperate. If you live in the Phoenix/Scottsdale area and want to learn more about collaborative divorce, contact Ogborne Law today.