Is a Will Nullified by Divorce in Northern Virginia?

Divorce can be emotionally draining, distracting, and devastating to your life. It makes it harder to focus on basic tasks or think clearly, especially regarding important things like work and even issues of estate planning. Many people do not consider how divorce affects a will, for example.

Understanding the divorce process and implementing the essential changes you must make before your divorce is finalized can save you all manner of headaches and ensure that your assets are distributed exactly as you wish. The knowledgeable Virginia family law and divorce lawyers at ShounBach are here to help you with estate planning after a divorce. That includes a new, valid will so that your ex-spouse is not left to make important decisions about your assets and beneficiaries.

Will My Divorce Nullify a Will in the Commonwealth of Virginia?

A divorce does not nullify a valid existing will. It does, however, treat your former spouse as though they passed away. It revokes any property that you left to your divorced spouse. For inheritance purposes, your assets will move to the next contingent beneficiary, assuming you named one. Virginia law states that any divorce or annulment revokes the disposition or appointment of any property you left to your former spouse.

If you have not named a contingent beneficiary, but you have named a residuary beneficiary, the process will move to the residuary beneficiary. If you have no beneficiary designations or directions about where the assets should go, your assets could become intestate. Having your will interpreted under the rules of intestacy in Virginia means that the courts handle your assets through probate, and your estate may not be distributed as you wish.

A divorce also revokes the appointment of your former spouse as an executor and removes them as a fiduciary if you named them as such. Instead, any alternate executor named in the will is appointed. If the will does not name an alternate executor, the probate courts of Virginia will appoint a new executor. In short, divorce does not nullify your will, but it can majorly affect your estate planning.

What if My Divorce Is Pending?

If you die before the courts issue the final divorce decree, your gifts to your soon-former spouse may still be valid, even though that is probably not what you wanted. The courts make this decision during the probate process and may consider such factors as whether you had a permanent legal separation at the time of the divorce proceedings. Virginia state law declares that no change of circumstances can revoke any instrument of a will or trust, with only very specific exceptions allowed. Your family law attorney can help you to understand how these exceptions work and if they apply to your situation.

Why Create a New Will After You Get Divorced?

Creating a new will allows for completely revoking your old will. Thus, a new will after a divorce can state that your former spouse will not receive anything you do not wish them to receive. You should also discuss updating other aspects of your estate plan, such as naming a new power of attorney, distributing property like bank accounts, and naming custody and guardianship of minor children.

Although a new will gives you the power of appointment over a new guardian for your children if something happens to you, the courts may override the will if the other parent is still living. If the courts deem that the surviving parent is fit to take custody, they can issue a court order that overrides the appointment of a new guardian.

What Happens if I Do Not Create a New Will After a Divorce?

If you do not create a new will, the courts will abide by the terms of the current will. In the execution of the will, the court will treat your former spouse as though they had predeceased. They will not receive any assets or hold the title of executor.

Some assets might also become subject to intestacy rules due to not having a designated beneficiary to receive them. In certain situations, these intestacy rules allow your former spouse to attempt to contest the terms of the will, causing problems with your intentions for your current surviving spouse.

What Are the Rules of Intestacy?

The rules of intestacy under Virginia law outline what happens to a testator’s property if they do not name a beneficiary in their existing will or do not have a valid will. First, if there was a remarriage following the divorce, the court will factor in the testator’s marriage. Their current spouse will be the primary beneficiary unless the decedent has children from a prior relationship, also called direct descendants.

If direct descendants exist, they are entitled to two-thirds of the estate, with the current spouse entitled to the remaining third. Without a surviving spouse, the estate passes to the decedent’s children and descendants.

The estate passes to the decedent’s parents if there are no surviving descendants. If the parents are no longer surviving, the estate passes first to the decedent’s siblings, then to the decedent’s nieces and nephews and their descendants.

If none of the above are in the picture, half of the estate passes to “the kindred of one of the decedent’s parents,” and half goes to the “kindred” of the other decedent’s parents. In that order, this means grandparents, uncles, aunts, great-grandparents, grandparents’ siblings, or the nearest lineal ancestors.

If none of the above exist, the entire estate moves to the surviving relatives of the parents. Finally, if no direct relatives are available, the estate can move to the ex-spouse.

How Is Inheritance Handled After a Divorce?

Throughout your marriage, you may have combined inheritance funds with marital assets. This can complicate the passing on of assets after you die, especially when you divorce. In this case, Virginia divorce law requires you to trace the inheritance from when you received it to where it is now to separate the private assets and marital assets.

This process can be complicated and require detailed knowledge of inheritance law and financial knowledge to perform the tracing. A northern Virginia law firm well-versed in estate planning and divorce law can provide the legal advice you need so that when you pass away, your loved ones are cared for properly.

If We Are Separated, Do I Have to Include My Spouse in My Will?

No law states that you must include your separated partner when you create a new will. It is always a good idea to make a new will when separated. Otherwise, your separated partner can still claim inheritance as your divorce is not final yet. While divorce nullifies claims of beneficiary status, legal separation in Virginia does not.

Creating a new will may seem like a hassle, especially before your divorce finalizes or if you hope to reconcile with your spouse. However, it is worthwhile when you consider the consequences of ensuring that your estate and assets are distributed according to your wishes when you pass away.

If you are in the process of a divorce, making a new will covers you in case the unthinkable happens before everything finalizes, particularly if you are seeing someone new whose needs you wish to protect. The costs of creating a new will, both financial and emotional, are small when compared to the peace of mind of knowing that your loved ones will get the care and quality of life you desire. If you reconcile with your spouse, you can always amend or re-draft your will to return things as they were.

Need Help With Your Will After a Divorce in Virginia?

Your will is a vital document that outlines your desires after passing on. It can help to provide your spouse, ex-spouse, children, step-children, and other loved ones benefits to protect their quality of life in conjunction with your life insurance policy, irrevocable and revocable trusts, and other estate planning steps.

Divorce, unfortunately, complicates just about everything. For many people, updating a will is the last thing on their minds when trying to protect their separate property and fight for a fair and equitable split of marital property. It can be easy to forget that your estate planning is also part of your will if you are in the midst of a battle for child custody, alimony, child support, and property division.

You need to revise your will or revoke it and make a new one to ensure that the people you elect receive the benefits they deserve after you pass away. Revising your will should be a crucial part of your divorce process. It is something you should plan for and with which your divorce attorneys can help.

The attorneys at ShounBach have years of experience in all aspects of estate planning and family law. We are ready to help you plan for your beneficiaries’ future and work with you to determine which parts of your will and estate plan need to be updated and changed.

What Else Should You Renew or Revoke After a Divorce?

Estate planning after a divorce can get quite detailed. Besides your will, you will want to update any trust arrangements, which divorce does not automatically affect. If you have designated your ex-spouse as the trustee, they remain so regardless of marital status. This can be exceptionally difficult, particularly in cases such as irrevocable trusts, which can require a court order to change. It is also essential to alter your powers of attorney, legal guardianship, and beneficiary designations.

Because Virginia revokes your ex’s status in your will after your divorce, a revocable living trust can allow you to still provide for them if you wish. All of this can become complex. For help with your post-divorce estate planning needs, the attorneys at ShounBach are here. We are ready to help you protect your interests and those of your loved ones. Call us today at 703-222-3333 or fill out our online contact form to speak with a member of our legal team.