The State Might Revoke Your Will When You Divorce

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Common and written laws that control division of a decedent’s estate go back thousands of years. More recently in our nation’s history, legislatures across the country have tried to establish a default pattern of distribution for what they suppose would have been the intended distribution scheme for a testator without a will. Even now, most states have gone a step further and created laws that revoke provisions of an otherwise valid will or power of attorney upon the entry of a court order in a divorce proceeding.

A divorce decree entered by a court can have an automatic effect on your estate plan through these statutes, whether or not it was intended by the parties to the divorce action. In this area of law, the legislature is trying to predict what a rational person would have intended for the heirs to receive, and they suppose that a divorcee will not want to make any distribution to an ex-spouse. In Arizona, the entry of a divorce decree revokes any provisions of a will or power of attorney in favor of the now ex-spouse. Whether that is what the testator intended, the law will operate to treat the ex-spouse as if she predeceased (died before) the testator when interpreting the provisions of a will written before the divorce.

Now such a revocation may be exactly what you want to happen, but it is rarely wise to rely on the legislature to manage your estate plan. It is a much better idea to draft a new will or power of attorney that acknowledges the prior marriage and sets out the new estate plan based on your post-divorce family structure. This is the surest way to allow your heirs to follow your wishes.

The estate planning attorneys at Nielsen Law Group are available for a complimentary review of your estate plan in light of your family law case, and would like to discuss your goals with the purpose of understanding how you wish to provide a legacy for your family. You can schedule your initial consultation by calling (480) 888-7111 or submitting a web request here.

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