Does a Divorce Exclude a Spouse From Inheriting Under a Will in Georgia?

By Beverly Bird

Although some jurisdictions have probate laws that may give some rights to a divorced spouse after her ex dies, Georgia isn’t one of them. The state is unique in the extent to which it limits spousal inheritances, both during and after marriage. Although its legislation can’t override federal law, no spouse in Georgia can inherit if the decedent, or deceased person, did not want her to inherit.

During the Divorce Process

Until a Georgia court issues a final judgment and decree of divorce, the terms of a spouse’s last will and testament prevail. This is true even if one spouse has filed for divorce, and the divorce is still in progress. In every state but Georgia, a spouse will still inherit during this time period. However, at the time of publication, Georgia law allows one spouse to disinherit the other. Therefore, if one spouse does not want the other to inherit from him, he needs only to revise his will to omit any bequest he made to her. The court will uphold his wishes, even if he hasn’t gotten around to filing for divorce yet. However, if he does not revise his will and he included her in it, his spouse would still inherit until the divorce is final.

After Divorce

After a divorce is final, Section 53-4-49 of the Official Code of Georgia Annotated applies. This provision of Georgia’s legislation specifically states that after divorce, if a spouse neglected to write his ex out of his will, the probate court will treat the situation as though she predeceased him. Legally, divorce means she doesn’t exist anymore and as such, cannot inherit. Any bequest she was to receive transfers to the decedent's other beneficiaries in the order in which he wanted them to inherit. This provision of Georgia law also prevents a divorced spouse’s children from inheriting, unless they are also the children of the decedent.

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Special Georgia Provisions

Just as Georgia law allows individuals to leave their spouses nothing in their wills, it also bars a spouse from taking advantage of an elective share option. Elective share statutes allow a spouse to elect to take a statutory percentage of her spouse’s estate, if that percentage is greater than what he left her in his will. "Statutory" means that the exact percentage varies according to individual state laws. Georgia is the only state that does not include an elective share statute in its legislation; its laws preclude a spouse in mid-divorce from inheriting in this way as well.

Exceptions

In some cases, a spouse might want to override the law and leave his ex an inheritance anyway, regardless of the fact that they’ve divorced. OCGA Section 53-4-49 allows this, but the will must specifically state that it is the decedent’s intention. If he makes no mention of the divorce in his will, the law will disinherit her. Any assets that do not pass through probate are unaffected by Section 53-4-49. For example, a life insurance policy with a named beneficiary is not a probate asset. It passes directly to the beneficiary. If a spouse neglects to change the beneficiary designation after his divorce, his ex would still receive the policy proceeds. Divorce also can’t affect a divorced spouse’s right to collect Social Security survivor’s benefits based on her spouse’s contributions, as long as they were married at least 10 years and she does not remarry.

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References

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