A couple can spend a long time living separately before they decide to divorce. Then, the divorce process can take some time, depending on how complicated and/or contentious it is. If you are divorcing and the process is taking time, can you remove your spouse from your will and other estate plan documents before the process is complete?
While you can take your spouse out of your estate plan as a beneficiary, you can’t truly “disinherit” them unless you have a prenuptial or postnuptial agreement in which they’ve agreed not to receive a portion of your estate. If your spouse hasn’t agreed not to receive any of your estate in one of these marital agreements, they would have the right to “renounce” your will if you passed away while you were still legally married.
In Kentucky, if someone renounces their deceased spouse’s will, they can typically elect to take the share of their estate that they would have received under the law if the spouse had died intestate (without a will). That share, which varies depending on the type of asset, is either one third or one half. They’re also allowed to renounce the will if the assets left to them are less than the value that they’d receive by renouncing it.
What happens when the divorce is final?
Note that once a divorce is final, that divorce revokes any “disposition or appointment of property made by the will to the former spouse.” They’re also automatically removed from any estate administration position they’ve been designated to have, such as “executor, trustee, conservator or guardian, unless the will expressly provides otherwise.”
In some cases, divorced spouses trust each other enough to want the other to handle their affairs after they die. However, if that’s the case for you and your ex, it’s important to specify in your estate plan that you’ve chosen to keep your spouse in that capacity and didn’t just fail to change the terms of your plan.
If you’ve already taken the wise step of creating an estate plan prior to deciding to end your marriage, it’s crucial to understand how divorce will affect it and what changes you can and can’t make prior to the finalization of the divorce. There may also be agreements in the divorce that will require other changes to your estate plan. Sound legal guidance can help you sort all of this out to help prevent unwanted consequences.