Estate Planning Considerations in DivorceMarybeth Sampsel
Far and away, the most common wills in Montana (and across America I would guess) say something like this: If I die before my spouse, all my property goes to him when I die. If my spouse dies before I do, my property goes to my children in equal shares. It’s popular for good reason: it works in a way most people think is fair. But here’s the catching point: the will doesn’t say “my spouse.” The will names your spouse. It says, “I’m married to Brad Pitt… If my husband, Brad Pitt, predeceases me…” So what happens if I’m not married to Brad Pitt at the time I die?
The good news is that Montana already thought of that. Our laws recognize that at the end of a messy and emotionally draining divorce the last thing you may feel like doing is having a new will drafted. So the law provides a sensible default. It says that if you named your spouse in your will, and executed a will at the time you were married, if you get divorced later we’re going to assume you meant for that to modify the will as well.
So, in the will discussed above, if I divorce Brad but don’t get around to having a new will drafted before I die – the Court is going to read my will as if all the parts included Brad had been deleted. Usually, this makes for a pretty good result. In the most-common scenario I started this article discussing, it would mean that everything would go to my children in equal shares. That’s probably what I would have done if I’d gotten around to making a new will anyway, so I’m happy with that.
But what if, after divorcing Brad, I’d married Ryan Reynolds? Wouldn’t I want my property to go to him? I might. But if I didn’t make a new will and specify that Ryan is going to be in a tough spot. This demonstrates that a sensible default is great, but it doesn’t cover all potential outcomes. I strongly recommend all my clients talk to an attorney about estate planning following a divorce. Whether that’s me or someone else isn’t as important to me, but you should know what will happen when you die. It may be that the default will cover you, but wouldn’t you want to know?