Does Your Ex-Spouse Inherit Your Estate If You Unexpectedly Die?

Guest post by Lisa M. Cukier, Esq., Partner at Burns & Levinson LLP.  Ms. Cukier concentrates her practice in all aspects of probate litigation, fiduciary litigation, planning & litigation for blended families, same-sex couples, guardianship, conservatorship, mental health law, elder law and domestic relations.

You are divorced …. but wait, if you unexpectedly pass away, does your ex still have rights to your estate?

One spouse’s waiver, in a divorce or separation agreement, of an interest in beneficiary designations is not sufficient to bind the plan administrator, who is obligated to distribute the funds according to the beneficiary designation, even if the parties are divorced at the time of death. In fact, a spouse’s waiver of her or his interest in the other’s life insurance or retirement plan or assets designated as “TOD” (“Transfer On Death”), which assets are retained in the division of property in the divorce, will likely be ineffective. On the death of the person who made the beneficiary designation, the former spouse will receive the death benefit. You must take the additional step of revoking or changing the designation of your former spouse as beneficiary of such accounts, assets, and plans.

Although a divorce may not automatically change a beneficiary designation with respect to life insurance policies and retirement accounts, divorce will alter your Will. The law recognizes that after a divorce, most people do not want to leave their former spouse any of their assets by Will. Thus, the law currently states that a divorce will effectively “revoke any disposition or appointment of property made by the will to the former spouse.” At your death, and absent any provision to the contrary, any property designated in your will that is supposed to pass to your former spouse will instead pass on as if the former spouse failed to survive you.

22 Comments


  1. My Ex husband passed away recently without a will and we were married 36 years and have 4 children together, divorced in 2002 and the Quardo’s were never completed due to his attorney not finishing up on anything, My ex did remarry which lasted 6 years and now she wants everything. Do I have any recourse? What is my next step? Also one of my daughters is filing for executor of his estate and his wife of 6 yrs. is opposing this. How do we handle this! His spouse already cashed in an insurance policy with my daughters name one it less than 60 days of his death, is that legal?


  2. Hi Patricia,
    Wow what a horrible situation. I am afraid that it is so complex that I can’t even begin to comment on it with the little information I have. My advice to you is to get a good probate (divorce and will) lawyer in your jurisdiction and go over it with them. Do this as soon as possible as time frames may be running which will cut off your rights.
    Best, Nancy


  3. My Fiance’s father just passed away recently. No one knows if there is a will, but he did have an insurance policy. His ex wife ended up recieveing the payout of the policy. However they had no children together. Among my Fiance there are 3 other siblings. My question is if whether or not the ex wife can legally recieve the policy in the state of ohio, if in fact they have been divorced for some time?


  4. Hi Angel, I wish I could help you but I know nothing about Ohio law. In general, in Massachusetts if the ex spouse has been named in the policy but the divorce agreement has freed him of the requirement to maintain the policy his kids might have grounds for litigation. They should contact a good probate attorney in Ohio who would be able to help them out.
    Good luck,
    Nancy


  5. Hello, I have been divorced from my ex husband for 30 yrs. He had given me a general power of attorney at that time as he was in a serious car accident which left him a quadriplegic. He then wanted me and the children out of his life so we divorced. he is now on his death bed and he did say he understood that I still retained this power of attorney. I am as well as my children named as soul beneficiaries to his conciderable estate. is the will still valid as it was executed before our divorce and can I enact my power of attorney before his demise? Thank you. Naomi


  6. Hi Naomi; Thank you for your comment. I have asked my partner Lisa Cukier, who wrote the post you commented on to answer as this question is in her area of expertise. We are assuming that all concerned live in Massachusetts.
    Best,
    Nancy
    Dear Ms. Carinci:
    The Durable Power of Attorney that you described sounds like it is over 30 years old. From a practical point of view, I doubt that any bank will honor a Durable Power of Attorney that is so aged because it will be considered stale. The best way to deal with this, if your ex-husband wants you or one of your and his adult children to serve as attorney-in-fact for financial decision making, would be for you to find out from him if he wants to meet with us to discuss his estate and his medical and financial decision making. We can meet him at the hospital. The fact that he is quite so ill at this time does not necessarily mean that he lacks capacity to nominate someone to make financial and medical decisions for him.
    With respect to your ex-husband’s will, if it was signed by him before your divorce, and it provides for you and your children, then the provisions that favor your children will stand, but the provisions that favor you will not. On the other hand, if it was signed after your divorce, then the provisions that favor you will stand.
    Best regards,
    Lisa Cukier
    This Blog/Web Site and email response is made available by Attorney Nancy R. Van Tine and Burns & Levinson LLP for educational purposes only – i.e. to give you general information and a general understanding of the law, not to provide specific legal advice in relation to any situation you or anyone else may have. There is no attorney client relationship between you and the Blog/Web Site publisher, Attorney Nancy R. Van Tine or Burns & Levinson LLP. The information on this Blog/Web Site and email response should not be used as a substitute for competent legal advice from a licensed attorney in your state engaged by you for such purpose.


  7. I have been divorced from my ex husband for over 8 years. In 2001 I took out a family life insurance policy which covered me, him and my children should someone unexpectedly die. The policy was only $9.30 a month and since the kids were still covered, I never bothered to change anything on it. Therefore, my ex is still listed on the policy with me as the beneficiary. My ex died last year. Am I entitled to benefits under this policy since I am still listed as the beneficiary?


  8. I believe so, yes, but you should check with the insurance company.
    Best,
    Nancy
    This Blog/Web Site and email response is made available by Attorney Nancy R. Van Tine and Burns & Levinson LLP for educational purposes only – i.e. to give you general information and a general understanding of the law, not to provide specific legal advice in relation to any situation you or anyone else may have. There is no attorney client relationship between you and the Blog/Web Site publisher, Attorney Nancy R. Van Tine or Burns & Levinson LLP. The information on this Blog/Web Site and email response should not be used as a substitute for competent legal advice from a licensed attorney in your state engaged by you for such purpose.


  9. I have been legally married to my husband for 36 years. We have been separated for five years. I live in DE. My question is, am I entitled to his assests if and when he should die? Because no legal steps have been taken as of yet? Am I putting myself in jeaopardy by staying married to him? He does not what a divorce. I am searching for answsers!


  10. Hi there, I can’t really be of any help to you as you have not told me where you and your husband last lived as husband and wife, and where he lives now.
    Best,
    Nancy
    This Blog/Web Site and email response is made available by Attorney Nancy R. Van Tine and Burns & Levinson LLP for educational purposes only – i.e. to give you general information and a general understanding of the law, not to provide specific legal advice in relation to any situation you or anyone else may have. There is no attorney client relationship between you and the Blog/Web Site publisher, Attorney Nancy R. Van Tine or Burns & Levinson LLP. The information on this Blog/Web Site and email response should not be used as a substitute for competent legal advice from a licensed attorney in your state engaged by you for such purpose.


  11. My mom pased away several years ago, my mom and dad had a will. My dad has recently re-married, he never changed the original will, he did sign a post nuptial with his new wife which according to him she gets nothing but the contents of the house that my mom and dad purchased. She has now since moved out, but they are still married because she needs health insurance. I am worried that since they are still married she could move back into the house and I would have to deal with this legally, he says no. We live in florida, the house is in florida. Thanks for your time.


  12. Hi Rob,
    I am unable to help you as I am not licensed to practice in Florida. You and maybe your dad should sit down with a Florida attorney who is familiar with both divorce and estate matters and get this clear.
    Best,
    Nancy
    This Blog/Web Site and email response is made available by Attorney Nancy R. Van Tine and Burns & Levinson LLP for educational purposes only – i.e. to give you general information and a general understanding of the law, not to provide specific legal advice in relation to any situation you or anyone else may have. There is no attorney client relationship between you and the Blog/Web Site publisher, Attorney Nancy R. Van Tine or Burns & Levinson LLP. The information on this Blog/Web Site and email response should not be used as a substitute for competent legal advice from a licensed attorney in your state engaged by you for such purpose.


  13. My ex husband died. Our daughter is only heir. My ex husbands sister is Administrator of his estate and wants to give it up. My daughter lives in Arizona. Can I as her mother become the Administrator of my ex husbands estate for my daughter?


    1. I’ve asked my colleague Lisa Cukier, who wrote this post, to
      provide an answer:
      Every state has its own probate laws regarding estate
      administration. Those state laws provide for who is suitable to serve as
      personal representative to administer the estate. The state where the decedent
      died determines the state law that controls who is deemed suitable to serve as
      personal representative of the estate. I recommend that you reach out to an
      estate administration attorney in the state where your ex husband died in order
      to find out whether you may serve in that capacity. If your daughter is the age
      of majority, it may be that she can serve as personal representative. If she is
      a minor, you should also inquire of local counsel as to her right to child
      support payable by the estate and whether or not you need
      guardianship/conservatorship in order to assert her rights and receive her
      inheritance on her behalf.


  14. My x-husband has never remarried and has no children. He owns his home and some bank accounts. He doesn’t have a will. We are on friendly basis. Who would be intitled to his property. He has a sister, nieces and nephews and mother that are living. He lives in NJ


    1. Pam, here is an answer from my Burns & Levinson colleague Tiffany Howard regarding Massachusetts’ take on this situation. A New Jersey lawyer will know the specifics for laws in that state.

      In Massachusetts, if an individual dies without a will, and if there is no surviving spouse or child, then the entire estate would pass first to the surviving parent(s); if no parents, then to the surviving sibling(s).


  15. What if a husband leaves his wife without divorcing her, in say a mental health unit for thirty years, and fulfils no obligations as a husband by making no contact in any way throughout that time.
    Would he still be eligible as her husband to claim her estate if she dies?


    1. This is an interesting comment….can u send it to post author for a response then get them both up?
      Nancy


  16. Hi, my father died from a motorcycle accident a few months ago and left everything to his wife with a Will that said everything would go to us 3 kids once she passes. They live in NH and signed this over 10 years ago. She has two children that are not part of the Will and were not his children. She’s never liked us and I wonder, can she change the will now that he is no longer around?


    1. We asked post author Lisa Cukier, and her response is:

      “The stepmother can, indeed, change her will to leave out the daughters of her late husband, their father. If however, the father and stepmother had an enforceable contract (such as a prenuptial) to pass the remainder of father’s assets after stepmothers life to father’s daughters, then she would be in violation of that contract.

      Additionally, I note that lay people often confuse Wills and Trusts, and refer to trusts erroneously as wills. If the assets are in trust with a life estate interest or an income- only interest to the stepmother, stating that the remainder interest on her death is to pass to the daughters, and if that trust is irrevocable and not amendable, then the stepmother would likely have no ability to alter those terms. Ultimately, we would need to look at all documents to really know what power, if any, stepmother has to disinherit her late husband’s daughters.”

      Hope that helps!


  17. my late partner (we were not married) made a will in Cyprus when he bought an apartment there which he sold and the funds are in the uk in this will he left me “all my movable and immovable property,shares,rights to be transferred in her name” does this will make the old will he made before he divorced his ex invalid.

Comments are closed.