If divorce is in your future and you already have an estate plan (even a will) in place, it’s important to understand what changes you’ll need to make, when to make them and which ones the law will make if you don’t do anything.
Every situation is unique, so individualized estate planning guidance is necessary. Here we’ll look at a couple of questions most divorcing people have about their estate plan.
When can I remove my spouse from my will?
As long as you and your spouse are legally married, you can’t disinherit them. Even if you remove them from your will, if you pass away before the divorce is final, they would have a right to “renounce” the will and claim a share of your estate. The exception would be if they gave up a claim to any inheritance in a prenuptial or postnuptial agreement.
Kentucky law states that “the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse.” That means once the divorce is final, your spouse is automatically disinherited. Therefore, it’s important to have an alternate in place or to revise the will to continue to include them if that’s what you choose (or if it’s part of the divorce settlement).
When can I remove my spouse as executor?
The law also states that divorce “revokes…any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise.”
That means if your spouse is the executor of your estate or any other fiduciary duties related to your estate, the law will remove them once the divorce is final. However, you can name someone else prior to that since there’s typically no requirement that these positions be filled by a spouse. As with inheritance, if you want your spouse to continue in any of these roles even after you’re no longer married, you’ll need to modify your estate plan to designate that.
Remember that the same laws apply to your spouse and their estate plan, so it’s best if the two of you can keep each other informed on your modifications. As noted, the final divorce terms may warrant some changes as well. Getting legal guidance early can help prevent unnecessary complications.