Client’s will names spouse as primary beneficiary. It also names spouse as executor. Client and spouse divorce, but client dies before he has a chance to update his will. What is the result?
Tennessee law provides as follows:
If after executing a will the testator is divorced or the testator’s marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise.
Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent but § 32-3-105 shall not apply. Other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent.
Therefore, as a result of the divorce, ex-spouse is automatically treated as having predeceased the client. The bequest to ex-spouse passes to the next persons in line, as does the opportunity to serve as executor.
Note that the result would be different if the parties were separated, but not divorced, at the time of client’s death. Separation does NOT revoke will provisions for a spouse.
Keep in mind that you cannot rely solely on this statute to fix your estate plan upon divorce. The statute only affects wills. It has NO effect on the following:
- Trusts (whether revocable or irrevocable)
- Powers of attorney
- Advance directives
- Beneficiary designations for assets such as life insurance, retirement plans, and annuities.
Therefore, these items should be addressed after the divorce or as part of the divorce process, as appropriate.
Source: T.C.A. § 32-1-202
Posted by Joel D. Roettger, JD, LLM, EPLS