Sharon area MA Estate Plannning Atty. B. von Weiss: Effect of Divorce

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

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

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

Hessco Elder Services  

SHARON MA 

Sharon MA Council on Aging

Sharon MA website

Sharon MA Advocate

Sharon MA Patch

Sharon MA Library

Sharon MA Lions Club

Sharon MA Community TV

Sharon MA Historical Society

Sharon MA Rotary Club

ESTATE PLANNING 

AARP estate planning article 

Forbes magazine estate planning article 

Kiplinger magazine estate planning article 

USA newspaper estate planning article  

American Bar Association's Estate Planning FAQ's 

New York Times article on estate planning 

US News article on estate planning 

Fox Business article on estate planning 

Los Angeles Times article on estate planning   

COA'S 

Abington MA Council on Aging 

Attleboro MA Council On Aging

Avon MA Council on Aging 

Bridgewater MA Office on Elder Affairs 

Brockton MA Council on Aging 

Canton MA Council on Aging 

East Bridgewater MA Council on Aging 

Easton MA Council on Aging 

Mansfield MA Council on Aging 

Norton MA Council on Aging 

North Attleboro MA Council On Aging

Norwood MA Senior Center

Plainville MA Council On Aging

Randolph MA Council on Aging 

Raynham MA Council on Aging 

Rehoboth MA Council on Aging 

Rockland MA Council on Aging 

Sharon MA Council on Aging 

Stoughton MA Council on Aging 

Walpole MA Council On Aging

West Bridgewater MA Council on Aging 

Whitman MA Council on Aging  

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