Do You Need Divorce Papers From a Previous Marriage to Probate a Will?

by John Stevens
The probate court must determine what property the decedent owned before making any distributions.

The probate court must determine what property the decedent owned before making any distributions.

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Probate is the legal process of administering a decedent's estate by resolving claims and distributing property. The probate court must determine whether the legal requirements of creating a will were followed, extent of property decedent owned at death, and debts of the decedent. Divorce papers may be of significant value in determining what property the decedent owned and what debts the decedent owed, particularly for a recently divorced person as property and debts are often divided upon divorce.

Gifts to the Ex-Spouse

Spouses frequently leave property to each other in their wills. When a couple divorces and one spouse dies without amending his will to remove the ex-spouse, the question arises as to whether the ex-spouse still inherits under that will. The answer depends on the state’s law, but most states provide that the ex-spouse cannot inherit under the will. Some states take it a step further and provide that any provision in the will that leaves property to a relative of the ex-spouse also fails. In these states, the remaining portions of the will survive.

Determining Property Ownership

An important part of the probate process is determining the extent of property the decedent owned at death. It is for this reason that divorce paperwork may be valuable in a probate proceeding. If, for example, a person’s will specifies who will inherit a specific car and the divorce order awarded that same car to the ex-spouse, that portion of the will fails because the decedent no longer owned the car.

Determining Debts

One of the goals of probate is to pay off the debts of the decedent before distributing the decedent’s property to the beneficiaries under the will. As with determining what property the decedent owned at the time of death, it is equally important to identify the decedent’s debts. Divorce orders typically divide marital debts between the spouses, meaning one spouse is responsible for some marital debts while the other spouse is responsible for other debts. Locating the divorce order will reveal which of the marital debts were the responsibility of the decedent. These debts must be paid as part of the probate process before the court can distribute property to the beneficiaries under the will.

Martial Settlement Agreements

Divorce courts frequently encourage divorcing parties to reach an agreement on their own as to how they will divide property and debts, rather than have the court decide for them. Entering into such an agreement, called a marital settlement agreement or a dissolution agreement, saves the court and the parties time and money; they are fairly common when parties want to end their marriage with as little trouble as possible. The divorce order will most likely refer to such an agreement rather than list all the terms of the agreement. If an agreement is reached, it is important to produce that agreement in probate court so the court is aware of how the marital debts and property were distributed.