How Does Divorce Affect a Joint Will?

By Rob Jennings J.D.

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.

Joint Wills

With a joint will, two people bequeath all of their assets and property to one another. This type of will also contains provisions concerning the distribution of assets and property when the second person dies. Essentially, the joint will is a contract between two people. Some people like the simplicity of using a joint will to plan their estate. It can also be good if you want to stop the survivor of the will from changing the wishes of the deceased spouse regarding the distribution of the estate. For example, if a married couple agrees to leave their assets to their children, but one party worries the survivor may write a new will leaving property to someone else, the joint will stops this possibility.

Automatic Revocation

In some states, a divorce automatically revokes a will, or makes it void. In other states, it only revokes those provisions that were gifts to your spouse. In other words, the rest of the will stays effective. At times, the will can be affected by a divorce agreement or divorce judgment even when it does not contain provisions relating to your ex.

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Revising Will

After obtaining a divorce, some people decide to make a completely new will. However, that is not the only option. Some people are fine with the majority of their will, but just want to change the provisions relating to their former spouse. Making changes to these provisions only typically creates what is known as a codicil. Any provisions in the codicil that are inconsistent with the original document will revoke the earlier will.

Physical Revocation

If you are not interested in creating a new will or modifying the document with a codicil, you may be able to physically revoke the will. What counts as physically revoking a will varies from state to state. For example, some states would not consider a will revoked when a person writes in the margins of the document, "I hereby revoke this will." Instead, the person must write this revocation language over the words of the will or physically destroy the will by burning it, tearing it up or crossing out its words. Some states also allow a partial revocation, like crossing out only unwanted provisions.

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Can a Last Will Be Revoked After a Person Dies?
 

References

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Legal Will Advantages & Disadvantages

A legal will is a document that details someone’s last wishes. When the person passes away, the probate court that oversees the decedent’s estate will use a valid will to distribute the estate property. For a will to be valid it must conform to the drafting requirements provided by the state’s probate code. Probate codes do vary, so when drafting a will be sure that yours conforms to your state’s standards. Consider using an online document provider or an attorney to ensure that any will you draft follows your state’s requirements.

Texas Divorce & Wills

If you are going through a divorce, consider updating your will to ensure there are no problems when the will is probated. Texas law recognizes that people don't usually intend to leave their property to a former spouse, so any references to the former spouse in a will are essentially erased. However, you may want to leave your property to your children or another relative, so updating your will can ensure they receive the property intended for them.

How to Change Your Heirs in Your Will

In your will, you name an executor, the person who will manage your estate according to the distribution instructions that you also provide in your will. If your will meets your state's requirements, the probate court will uphold it and the executor becomes legally bound by its terms. He will have to give your property to the persons you named as the recipients of the property in your will. If you change your mind after you make your will, you must change your will or make a new one. Otherwise, people you don't want to inherit from you will receive property from your estate.

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