If you’re like a lot of people, you may have put an estate plan in place when you got married or had your first child. Your spouse is likely an integral part of that plan.
If you are divorcing your spouse, it is important to determine what kind of changes you want to make to your estate plan. It is also important to know which changes you can’t make until the divorce is final as well as which changes are made automatically due to Virginia law.
Most people going through a divorce need to make changes to their estate plan. Let’s look at two of the biggest concerns people may have.
Can I remove my soon-to-be ex as a beneficiary?
You can take out your spouse’s name at any time if you choose to. However, under the law, your spouse can still claim a portion (“elective share”) of your estate if you pass away while you’re still legally married. The only exception would be if they waive any right to your estate in a prenuptial or postnuptial agreement.
Once the divorce is final, the law will take care of disinheriting them. It will “revoke any disposition or appointment of property made by the will to the former spouse.” If you were to pass away, any assets you left to your spouse would go to your contingency beneficiary, if you have one.
Can I remove my spouse as my executor or other administrator before the divorce is final?
Since fiduciary positions can typically be held by any qualified adult, you can likely remove your spouse any time. As with inheritances, the law will take care of revoking appointments of a former spouse as “executor, trustee, conservator, or guardian,” once the divorce is final. That means it’s important to have an alternate named for these positions.
It is important to know about these automatic revocations of your spouse as a beneficiary and fiduciary if you prefer to keep things as is. If you do, you’ll need to modify your estate plan to reaffirm their inclusions in it when you’re no longer legally married.
It is important to look at your estate plan early in the divorce and throughout the process to determine what changes need to be made and when.