Death of a Divorcee and Survival of the Divorcee’s Will

It is not uncommon for a couple to plan ahead by each preparing a Last Will and Testament to handle their assets upon death. But couples do not usually plan for divorce. So what happens to the Wills of a divorced couple? First, the original Will may end up with whoever takes it from the marital home or gets the marital home in the divorce. If the Will is not legally revoked or physically destroyed then it is still a valid Will when the divorcee dies. This Will from the prior marriage can be revoked, replaced with a new Will, or destroyed. But if a divorcee fails to do this then the law provides some assistance. MCL 700.2807 provides that a court order such as a divorce judgment that divides a marital estate revokes the nomination of a former spouse to act in a fiduciary capacity, i.e. an ex-spouse named in a Will as the personal representative. This law also provides that a disposition of property to an ex-spouse is revoked, i.e. the ex-spouse cannot inherit just because they are named in the Will. The judgment of divorce usually contains language to address this issue as well.

So what is the problem? It is important to note that the Will if not revoked or destroyed is still valid – the divorce just invalidates certain parts of it. This means that the section naming the ex-spouse would be void but the other persons named to act as personal representative after the ex-spouse or to inherit assets after the ex-spouse would still be entitled to act or inherit. The deceased divorcee may not have really intended this document to still control assets upon death but the divorcee just never got around to preparing a new Will.

It is best to avoid this type of mess by completely redoing your estate plan upon divorce to reaffirm who will handle and receive your assets at death.

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