If you and your spouse will be divorcing in the near future or you’ve already begun the process, you may have had too much on your mind to think about your estate plan. However, if you have one in place, it’s important to understand how the divorce will affect it.
One of the most common questions people have is if and when they can “disinherit” their spouse. While you can likely remove any specific inheritances listed in your will or other documents, it’s important to know that under Maryland law, if a spouse dies while a couple is still legally married, the surviving spouse has the right to claim their “elective share” of the estate, whether they’re listed as a beneficiary or not.
The exception would be if they’ve waived their right to that elective share in a prenuptial or postnuptial agreement. The elective share varies depending on whether there are children or not.
Changes made automatically under the law
Once the divorce is final, any inheritance for the now-ex-spouse is automatically removed. Specifically, the law states that “all provisions in the will relating to the spouse, and only those provisions, shall be revoked unless otherwise provided in the will or decree.”
The law treats an ex-spouse as though they’re deceased for probate purposes. That means any inheritance listed in the estate plan would automatically go to your alternate or contingent beneficiary if you passed away after the divorce but before updating your estate plan.
You can, as the law says, modify your plan to specifically state that you want your ex-spouse to receive an inheritance. The terms of your divorce may require some type of provision for your ex-spouse in your estate plan, so it’s typically best to make those changes immediately after the divorce is final.
You may already feel overwhelmed by legal documents. However, it’s still a good idea to talk with an estate planning professional as early as possible about modifications that you’ll need or want to make to your plan before and after divorce.
