Divorce and Your Estate Plan

Of everything on a divorce checklist, this is the item most often left undone, and it is the one whose consequences land on the people left behind. A divorce changes one part of an estate plan by operation of law. Everything else stays exactly as you left it.

What Maryland changes for you

Where a marriage is dissolved by absolute divorce or annulment after a will was signed, Maryland law revokes all provisions in the will relating to the former spouse, and only those provisions, unless the will or the decree says otherwise. The rest of the will stands.

That is a narrow rule doing narrow work. It does not rewrite your plan. It removes your former spouse from a will you already had, and it leaves a gap where they were: if your will left everything to your spouse and named no alternate, revoking that provision does not name a successor. The result can be intestacy for part or all of the estate.

What it does not touch

This is the important list, and none of it changes on its own.

• Beneficiary designations. Life insurance, 401(k)s, IRAs, pensions, annuities, payable-on-death and transfer-on-death accounts pass by designation, not by will. An ex-spouse named on a form written years ago remains the beneficiary. Retirement plans governed by federal law follow the plan’s designation, and a state statute does not override it.
• Jointly titled property. Property held jointly with right of survivorship passes to the survivor. A deed has to be changed; a divorce decree that says who gets the house does not itself transfer title.
• Your power of attorney. If your former spouse is your agent, they remain your agent over your finances until you revoke it.
• Your advance directive. The same is true of a former spouse named as your health care agent.
• Trusts. A revocable trust naming a former spouse as beneficiary or successor trustee continues to say what it says.
• Guardian nominations. Who you named to raise your children if you die, and who you named to manage their money, deserve a fresh look.

While the divorce is pending

This is an awkward interval and worth thinking about deliberately. The marriage is not yet dissolved, so the statutory revocation has not operated, and a court may also have entered orders restricting changes to assets and insurance while the case is proceeding. What you can change now, what you should change now, and what has to wait until the judgment is a question to raise with your attorney early rather than in the last week.

A short sequence to work through afterwards

1. Request a beneficiary statement from every retirement plan, pension, insurance policy and brokerage account, and update each one in writing
2. Sign a new will rather than relying on the automatic revocation
3. Sign a new power of attorney and a new advance directive, and revoke the old ones
4. Confirm the deed to any real property matches the decree, and record whatever is needed
5. Review any trust, and any obligation in the settlement agreement to maintain life insurance for a child or a former spouse
6. If a child has a disability, make sure any inheritance is directed to a special needs trust rather than to them outright

Where the settlement agreement binds you

Agreements often require a party to keep life insurance in place, or to leave a certain benefit to a child. Those obligations survive the divorce and constrain what you can change. Read the agreement alongside the plan rather than treating them as separate projects. See settlement agreements.

Related

• Wills
• Dividing retirement accounts
• Probate and estate administration

Official resources

• Md. Code, Estates and Trusts section 4-105
• Maryland Register of Wills

Talk with a Towson attorney

The Law Office of Thomas K. Mallon, LLC offers a free consultation. Call (410) 847-9075 or request a consultation online. The office is at 1107 Kenilworth Drive, Suite 305, Towson, MD 21204.

This page provides general information about Maryland law. It is not legal advice, and reading it does not create an attorney-client relationship. Maryland law changes, and how it applies depends on the facts of your situation.