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Sharon area MA Estate Planning Atty. Brigitte von Weiss: MUPC § 2-804

By Brigitte von Weiss

Real Estate Attorney with an Expertise in Estate Planning and Elder Law

February 06, 2014 08:11 PM

The author Brigitte von Weiss of VON WEISS LAW OFFICE is an estate planning lawyer and elder law attorney in Easton, MA.

Website: vonweisslaw.com

I am often asked "How does my divorce affect my estate plan?"

The Massachusetts Uniform Probate Code (MUPC) became effective as of March 31, 2012.

Before the MUPC, Massachusetts law provided that divorce revoked the provisions in favor of a former spouse in a pre-existing Will (the former spouse was treated as having died first). The net effect was that former spouse did not inherit directly under the Will and any nominations appointing the former spouse were void.

The prior law was sometimes problematic. For example, under the old law, the stepchildren potentially could inherit (even though the former spouse did not) since the former spouse was treated as having died first and, consequently, children of the former spouse were entitled to the share of the former spouse. Also, under the prior law, the former spouse could still inherit non-probate assets (if the former spouse was still the named beneficiary, i.e., the beneficiary designations were not updated). Lastly, under the old law, divorce did not revoke the provisions in a Will favoring family members of the former spouse and so those family members would inherit.

The MUPC changed much of that.

Under § 2-804 of the MUPC, divorce now revokes (1) bequests in a prior Will to a former spouse and members of his or her family unrelated to the testator by blood, adoption or affinity after the divorce, (2) appointments of the former spouse and members of his or her family unrelated to the testator by blood, adoption or affinity after the divorce, and (3) pre-existing beneficiary designations favoring the former spouse and any of his or her family members unrelated to the testator by blood, adoption or affinity after the divorce except "as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce or annulment[.]"

As a side note, "testator" is the term referring to the person whose Will it is.

The MUPC does not affect dispositions by way of pre-existing irrevocable trusts as these dispositions typically are addressed in the divorce decree.

Estate planning documents should be updated after divorce. As an example, if you still wanted a stepchild to inherit from you despite the divorce, it is important that you explicitly state in your new Will that the bequest to the stepchild is notwithstanding your divorce from his or her parent.

Nothing in this blog should be considered legal advice as this is a complicated area of the law.

The author Brigitte von Weiss of VON WEISS LAW OFFICE is an estate planning lawyer and elder law attorney serving clients in Easton, MA, as well as nearby towns and cities, including Abington, MA, Attleboro, MA, Avon, MA, Bridgewater, MA, Brockton, MA, Canton, MA, East Bridgewater, MA, Foxboro, MA, Mansfield, MA, North Attleboro, MA, Norwood, MA, Norton, MA, Plainville, MA, Randolph, MA, Raynham, MA, Rehoboth, MA, Rockland, MA, Sharon, MA, Stoughton, MA, Walpole, MA, West Bridgewater, MA, and Whitman, MA.

Brigitte, a graduate of Boston College School of Nursing and an honors graduate of Loyola University of Chicago Law School, stands out from other elder law and estate planning attorneys in that she worked as a registered nurse for four years and earned a Master of Science in Taxation with high distinction from Bentley College. This unique combination of legal, nursing and taxation backgrounds enables Brigitte to provide outstanding legal guidance to her clients in their time of need. Call (508) 238-3005 for a free phone conversation with Brigitte to learn if she can help. You also may reach her through her website at www.vonweisslaw.com.

ADDITIONAL RESOURCES:

The Massachusetts Uniform Probate Code (MUPC)

Bristol County Family and Probate Court

Plymouth County Family and Probate Court

Norfolk County Family and Probate Court

Alzheimer's Association

National Academy of Elder Law Attorneys

Massachusetts Chapter of National Academy of Elder Law Attorneys

Massachusetts Area Agency's on Aging (AAA's)
and Aging Service Access Points (ASAP's)

MassHealth form

Bristol Elder Services

Old Colony Elder Services