When it comes to estate planning, understanding how major life events like marriage and divorce can affect your estate is crucial. These events can significantly impact the distribution of your assets if they are not properly addressed in your estate plan. Here’s what you need to know to ensure that your estate plan remains effective and reflects your current wishes.

Marriage: Premarital Wills

If you get married after executing a will but you never get around to updating your will to include your spouse, your premarital will stays in place at your death. However, Massachusetts law allows the surviving spouse to take his or her intestate share of your estate before your property is distributed under your will. The surviving spouse’s intestate share is the share that the spouse would have received if you died without a Will. This is called an “elective share” of your estate, and your spouse can claim this share regardless of what your premarital will says. 

If your premarital will gives property to your child who was born before your marriage and who was from a prior relationship (i.e., not also your spouse’s child), then the surviving spouse’s elective share is taken from the portion of the estate that you did not give to such child. The amount of the elective share that the surviving spouse can take depends on several factors, such as whether you had children with your spouse, whether either of you had children from prior marriages or relationships, and if neither of you had children but you die with a living parent. 

There are exceptions to this rule. If you knew you were getting married, you could have stated in your premarital will that it is being made in contemplation of marriage to your spouse and your will is to be effective notwithstanding any subsequent marriage. But if marriage was the last thing on your mind when you made your will, then you need to revise your premarital will to avoid potential conflicts and ensure that your estate is distributed according to your wishes.

Divorce: Automatic Revocation of Provisions 

If you have a will and subsequently get divorced from your spouse, any provisions you made in your will for your spouse are automatically revoked. This also applies to beneficiary designations on life insurance and retirement plans, transfer-on-death accounts, and any other revocable disposition. If your will named your former spouse or family members of your former spouse as Personal Representative of your estate, those designations are treated as if the former spouse predeceased you. However, if you and your former spouse later marry each other again, then the previously provisions in your will are revived.

This automatic revocation only applies if you are really divorced, not if you are just separated, and not if your divorce is not yet final.

Although the automatic revocation of dispositions to your spouse may seem to do the trick, they can wreak havoc on an estate plan and create unintended consequences. You may intend to benefit your former spouse even after your divorce with life insurance or some other asset, but the beneficiary designation is automatically revoked upon your divorce. Additional steps must be taken to ensure that designation will stick after the divorce occurs.

After a divorce, revising your will is essential to remove your former spouse (or include them, if you want to provide for your former spouse) and make any other necessary changes, such as updating your named Personal Representatives. 

All this is to say that significant life events, whether through marriage or divorce, can dramatically alter your estate plan and result in unintended consequences. By proactively revising your will and other estate planning documents when these events happen, you can ensure that your estate is handled according to your wishes and that your loved ones are provided for as intended.

Attorney Brittany Hinojosa Citron is an associate attorney with the Dedham, Massachusetts, firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of estate planning, estate settlement and elder law matters. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information or to schedule a consultation with one of our attorneys, please call 781-461-1020.  

July 2024

 

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