The law makes a number of assumptions about estate planning and marriage. When divorce happens, some new assumptions are made, but they may not be what’s best for you. Here’s what you need to know about divorce and estate planning in Maryland.
If your marriage is headed for divorce, you should get new estate planning documents as soon as possible, even before the divorce is final. This is the only sure way that none of your property goes to a former (or soon to be former) spouse when that’s the last thing you would want.
If you get divorced, the provisions in your will providing for your former spouse are revoked. (If for some reason you would still want a provision in your will to apply to your former spouse regardless of divorce, you may provide so in your will, but we’ll assume that’s not the case.)
Example: Harry executed a will where he left everything to his wife, Martha, if she survived him, if she did not survive him, then everything to his friend Luke. If Harry and Martha get divorced after the will is signed, the provision to the wife is revoked, and Luke would inherit everything.
It’s important to note that this doesn’t apply if a divorce isn’t final. If you are separated then your spouse is still treated the same as if you were still together. It’s also important to remember that wills only apply to property that doesn’t already have a beneficiary designation. Divorce has no effect on your life insurance or retirement beneficiary designations. It’s crucial to update these in the event of a separation or divorce.
Powers of Attorney
In Maryland, divorce does not affect a financial power of attorney. That means if your power of attorney lets your spouse manage your finances on your behalf, that power of attorney will continue to let your ex-spouse to do so until you change it. Some states automatically revoke power of attorney in the event of a divorce but Maryland is not one of those states.
Similarly, if you named your spouse as your agent in an Advance Directive or Health Care Power of Attorney, you should get a new one if this is no longer what you want.
If you made estate planning documents when you were married and later get divorced, the best thing to do is get new documents drafted as soon as you can. If not, your ex-spouse may get your property. An experienced estate planning lawyer can help you with new documents and provide you with legal advice.
Montefusco Estate Planning, LLC is an estate planning law firm in Frederick, MD. If you are interested in our services, contact us today. This information is written for the context of Maryland estate planning but is not legal advice for anyone. For more information, read our disclaimer.