Can I change my will during a divorce?

People going through a divorce often do not want their soon-to-be ex-spouse inheriting their assets such as real estate or bank accounts.  While death is a tough topic to think about, divorces should involve some estate planning early on in order to best protect what you own if your not-quite-my ex-spouse outlives you or dies before the divorce is done.

Minnesota Uniform Probate Code, the laws that address what happens with assets when someone dies, says that a divorce creates a situation where your soon-to-be ex-spouse legally is no longer your “surviving spouse” meaning the language in the Will that says what you own goes to your “surviving spouse” no longer applies.  Things such as a Financial Power of Attorney and Health Care Directive, otherwise known as a Living Will, are revoked so they are no longer valid.  Any beneficiary designations in Wills or Trusts are still valid until a divorce is actually final, however.  So, with the exception of beneficiary designations, a person who dies during a divorce has their assets divided in accordance with Minnesota law starting with parents, siblings and other close family members.

Starting a divorce allows people to make a new Will where they can name a new personal administrator of their own choice who is not the soon-to-be ex-spouse.  The same holds true to being able to make changes to those who get to make decisions with regard to a person’s Financial Power of Attorney and Health Care Directive.  Likewise, a divorce changes the title of real estate such that a spouse’s death does not automatically give the deceased person’s interest to the soon-to-be ex-spouse.

Those with a Will or Trust going through a divorce should discuss with their estate planning attorney how to obtain a copy of the documents that created the Will or Trust so the divorce attorney knows exactly what estate planning was done during the marriage.

If you have been divorced and you have questions about the real estate that was divided, contact experienced family law attorney Jessica L. Sterle at (218) 722-2655 to schedule a consultation.

Jessica Sterle