Rules for Wills After Divorce in Ohio

By Heather Frances J.D.

Your will tells your loved ones how to distribute your property after death, and it can also appoint guardians for your minor children or set up a trust for your beneficiaries. Since your wishes can change over time, you might change your will several times, particularly after important life events, such as divorce or marriage. However, if you forget to change your will, Ohio law will step in to change it for you, depending on the circumstances.

Your will tells your loved ones how to distribute your property after death, and it can also appoint guardians for your minor children or set up a trust for your beneficiaries. Since your wishes can change over time, you might change your will several times, particularly after important life events, such as divorce or marriage. However, if you forget to change your will, Ohio law will step in to change it for you, depending on the circumstances.

Bequests

Ohio law assumes you would not want to leave any of your assets to your ex-spouse after your divorce; therefore, state law automatically revokes any bequests to your spouse made in your pre-divorce will. For example, if you make a will before your divorce that leaves half of your property to your spouse and the other half to your brother, your brother will inherit everything if you die after your divorce. Ohio law takes away your ex-spouse’s right to her half as soon as you divorce, whether or not you change your will. However, if you wish to leave property to your ex-spouse, you must create a new will after your divorce and specifically state so.

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Testamentary Trusts

Testamentary trusts, or trusts created by the terms of your will, help safeguard your assets for your beneficiaries. For example, your will could create a trust for your minor children since they cannot inherit property until adulthood. If you named your spouse as the trustee, or manager, of a testamentary trust contained in your pre-divorce will, your spouse’s powers over that trust are automatically revoked by Ohio law upon divorce. If you named a successor trustee in your will, the successor is treated as the primary trustee instead of your ex-spouse. However, by creating a new will after the divorce, you can give your ex-spouse trustee powers if you still want her to have that authority.

Other Powers

In addition to bequests and trustee authority, Ohio law automatically revokes any other powers your pre-divorce will gives your ex-spouse. For example, if your pre-divorce will named your spouse as executor or administrator of your estate, an Ohio court will ignore that nomination after your divorce. Similarly, if your pre-divorce will named your spouse as the guardian of your minor children, Ohio law revokes that designation. However, your ex-spouse will still serve as the guardian of your children if they are also her children.

Estate Planning After Divorce

These provisions of Ohio law apply unless your will states otherwise, and only apply to wills you create before you divorce, obtain a dissolution of marriage, annul your marriage or legally separate from your spouse. Other provisions in your will not pertaining to your ex-spouse remain intact and enforceable, so it is usually a good idea to reevaluate your estate plan and will after your divorce to ensure it still distributes your property as you wish. You can also revoke your entire will at any time by destroying it or replacing it with a new will. However, if you create a will after divorce, Ohio law will not revoke powers and bequests that you give to your ex-spouse in the new will.

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California Divorce & Estate Planning

References

Related articles

The Longevity of a Will & Testament

The testator of a will gives directions regarding the people he will leave behind. Wills typically include instructions about who should receive property from the decedent’s estate; the decedent can even use the will to set up a trust for his beneficiaries. Often, wills include nominations for who will manage your estate and assume guardianship of your children. Wills do not expire or go stale, but some terms may become out-of-date as circumstances change or as affected by the operation of state law.

Ohio's Living Wills

A will is a document that distributes your property after your death, but a living will directs your medical care while you are still alive. If you become gravely ill now or toward the end of your life, you may not be capable of understanding your medical care options or communicating decisions to your physicians. Ohio law allows you to create a living will, which sets out your wishes in such situations.

How Does Divorce Affect a Joint Will?

If you and your spouse are divorcing, you may wonder what you need to do with your will. What happens to a will when a husband and wife divorce depends on the laws of your state and the type of will you used. Sometimes the will is automatically void; other times, the parties must take action to revoke the document.

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