Family Law Attorney
People are aware that the surviving spouse is entitled to inherit all of the large portion of the estate of a deceased person that they are married to. Fewer understand the effect on the estate if one spouse dies during a legal separation and or after a divorce, and this is likely because people do not like to think about death. After divorce many people neglect to change wills to specify for things to be left to their former spouse, or they might forget to change the beneficiary designations for life insurance and retirement account. State law might dictate what will happen in such situations however provisions and procedures can vary financially from state to state. Therefore you should always talk to a family law attorney, such as one available at Hurst, Robin & Kay LLC.
Intestate succession and divorce focuses on when a person dies without a will. When a person dies without a will, state law is going to determine how and among whom the estate is to be divided among. Based on perception the estate generally passes to the name of the surviving spouse as the primary beneficiary, intestate succession laws reflect us and allocate all or large portions of the estate to the surviving spouse.
However in most states after and sometimes even during a divorce spousal status is lost. This means that the husband or wife will not be considered a surviving spouse for purposes of intestate succession where a final divorce decree exists. There are some other terms that may void a person spousal status, such as the marriage was void due to being incestuous, there was a decree or judgment of separation, or the spouse abandoned or failed to support the decedent.
If you have any questions about whether your state allows for spousal status during divorce proceedings, you should talk to your family law attorney.
In some states a surviving spouse does not include those whose marriage has been annulled or dissolved, who have obtained or consented to divorce and then married someone out, or who are parties to a proceeding where they terminated marital property right. Again if you have questions about whether this applies to your situation, talk to a family law attorney.
In some states a divorce or annulment automatically invalidates will provisions which leaves property to the former spouse and designating the former spouse to act as executor, trustee or in other capacities. Divorce may also deprive the divorced spouse of the right to statutory, elective share of the decedent’s estate. This sometimes happens while a divorce is pending, which means that in some states the court will rule that the surviving spouse is no longer entitled to a division of property by the divorce case because of the death of the spouse.
So state laws sometimes avoid beneficiary designations of divorce passes for life insurance, retirement accounts and more. However you need to know your states laws, and nobody is going to know those laws better than your family law attorney.