Changes to Estate Plans After a Divorce

Tuesday, May 19, 2020

    Under Oregon law, a divorced spouse will be treated as pre-deceased for purposes of inheritance from their former spouse under a Will that existed before the divorce, in most cases.

    This is true even if the former spouse does not change his or her Will.  Nonetheless, you will still want to review your Will after a divorce to be sure that none of your former spouse’s relatives will benefit (unless you want them to), and that none of your former spouse’s relatives will become your personal representative or executor, or the like (unless you want that to happen).

    You should also review your other estate and incapacity planning documents after a divorce for similar issues.  Unlike Wills, many of these things do not change automatically following a divorce.

    This can be particularly true re Trusts, although as with a Will, the former spouse will be treated as predeceased, and trust provisions relating to the former spouse himself or herself will generally be revoked by statute if there is a divorce.

    Of course, if you do want your former spouse or any of his or her relatives to receive anything upon your death, or to serve as a fiduciary for you in any capacity, you should also do new documents laying this out specifically.  In some cases this will merely clarify your intent, and in some cases this will be essential if you wish these people to continue to benefit upon your death, or to serve as your personal representative, attorney in fact, health care representative, guardian or conservator, or the like.

    You should also consider other related issues, such as who will be the beneficiaries of your life insurance, and who will receive your retirement assets, etc.

    Sometimes the results that occur if you do not take affirmative action can be surprising.  Sometimes this means that people who you did not intend will benefit, or will have powers over you if you become incapacitated, etc., when you no longer intend that.  In other cases, people with whom you have had a parent/child like relationship for years or even decades may be cut out of things you still intend them to have, or will be unable to act as a fiduciary for you, even though you still want them to be able to do this.  In such cases, it can be crucial to update your estate and incapacity planning documents.