After getting a divorce, many spouses want to disinherit their ex and remove them from fiduciary duties, such as being named as the executor of your will or the agent in your power of attorney. The rules regarding disinheriting your spouse after a divorce vary by where you live and the terms of your divorce.
Revising Your Will
The easiest method of how to disinherit a spouse in most cases is to revise your will, either by creating a codicil to your will or making a completely new will. While most states will automatically disinherit a spouse if you pass away after your divorce, revising your will can provide greater certainty. You may have other changes that you want to make, too, due to the divorce, such as different contingency plans if someone else predeceases you.
While you are at it, you may also want to update other estate planning documents, such as;
- Your power of attorney
- Your living will
- Your trust
- Your beneficiary designations
You can generally make these changes without issue as long as your divorce decree does not indicate otherwise or unless you have irrevocable wills with your spouse.
State-Based Laws
The answer to the question of “Can I disinherit my spouse?” largely depends on state law. In most states, any previous gift or appointment you made to your ex-spouse is automatically revoked when your divorce decree is entered. Some states go a step further and automatically revoke any gifts that you made to your ex-spouse’s family, including their children or other relatives. You may not want to do this and may still want to honor a relationship you have with someone in your ex’s family, so making a new will in which it is clear that you want your ex’s family to benefit from your will can help you ensure your wishes are honored.
Different states may have different rules about asset ownership after divorce, so be sure you are familiar with these rules and adjust your estate plan accordingly.
Community Property States
The next question you may have is “Can you disinherit your spouse in a community property state?” In community property states, most of the assets you acquire after marriage are considered one-half yours and one-half your spouse’s. Your property is divided during the divorce process. The judge may order that certain property be retitled to just your spouse’s name or be split, such as your retirement accounts. However, you may still need to make updates to some of your beneficiary designations after divorce so that you can still control who receives your portion of the asset after your death.
Living Trust vs. Will
A living trust is an effective way to handle how your assets are treated after death. When your living trust is revocable, you can revoke it or make modifications at any time. If you get divorced, it is fairly easy to change your living trust to account for this. A living trust is privately administered, so it does not involve the court whereas a will becomes a public document when it is probated. Changing your will to reflect the change in your relationship status can also help you disinherit your spouse, but you will not have as much control of your assets as you would with a living trust. Unless your divorce decree says otherwise, you can generally include any terms in your living trust you deem appropriate as long as they are not illegal or against public policy.
How Kids Affect Disinheritance
If you have children with your ex or you treated your ex’s children as your own during marriage, you may choose not to disinherit your spouse completely so that he or she can handle any inheritance you leave for the children. If a child is a minor, he or she cannot directly own property, so you may indicate in your will that your ex will hold the property for the child until they become an adult. This may be simpler than setting up a trust or opening a custodial account for this purpose.
Retirement: Revising 401k and IRA Beneficiaries
Typically, 401(k), IRA, and other retirement assets go to the person you named on the beneficiary designation form, regardless of what is in your will or trust. After divorce, you should change the beneficiary designation of these accounts unless you want your spouse to still inherit them.
The Terms of Your Divorce Decree
A critical factor in whether you can disinherit a spouse is what the terms of your divorce decree are. The court may have ordered that you maintain life insurance and name your ex as the beneficiary as part of a spousal support or child support award. The court may have instructed you to keep your spouse as the beneficiary on your retirement account. Carefully review the terms of your divorce decree before you make any changes to your estate plan.
What To Do If You’ve Been Disinherited
So, now that you know the answer to “Can you disinherit a spouse after divorce?” you may now want to know what to do about it if you have been disinherited. If you do not have any language pertaining to the specific assets you are disinherited from or an irrevocable will with your spouse, you likely will not have any recourse. However, if your spouse has violated the orders of your divorce decree, you can consider filing a motion for contempt to have the court penalize your spouse and have them follow the court order.
