How Does My Divorce Impact My Last Will and Testament?

This Week’s Blog by Jaime S. Dursht

  • A divorce has the legal effect of invalidating a Will in its entirety if it was executed prior to January 1, 1977
  • If the Will was executed after January 1, 1977, only those provisions affecting an ex-spouse are invalidated and the remaining provisions stay in effect
  • The invalidated provisions of the Will are treated as revoked by the testator and the Will is interpreted as though the ex-spouse predeceased the testator
  • A divorce has no effect on the named Executors, Guardians and Trustees who are responsible for carrying out specific duties in accordance with the testator’s intent

Many married couples have what is called a “Sweetheart Will” which is a term that refers to a common inheritance plan between spouses whereby the surviving spouse receives the entire estate of the deceased spouse.  Since a Last Will and Testament is intended to carry out an individual’s final wishes as to the distribution of one’s estate, an ex-spouse would almost always fall outside the group of intended beneficiaries following divorce.

Prior to 1977 a divorce had the legal effect of revoking or invalidating the entire will by operation of law.  This rule still applies to wills executed before January 1, 1977.  The law changed in 1976 so that wills executed on or after January 1, 1977 are not revoked in their entirety by divorce.  Instead, those provisions that benefit an ex-spouse are treated as though the ex-spouse predeceased the testator, and the remaining provisions that are unaffected by divorce stay in effect.

Conn. Gen. Stat. Section 45a-257c provides, “If, after executing a will, the testator’s marriage is terminated by dissolution, divorce or annulment, the dissolution …shall revoke any distribution or appointment of property made by the will to the former spouse … unless the will expressly provides otherwise.  Property prevented from passing to a former spouse due to revocation by dissolution … shall pass as if the former spouse failed to survive the testator, and other provisions conferring power or office on the former spouse shall be interpreted as if the spouse failed to survive the testator.”

Making sure your estate planning documents are reflective of your last wishes with respect to the distribution of your estate is often an overlooked step following divorce.   Although the law provides for revocation by divorce to eliminate an ex-spouse’s interest, there may still be problems created regarding previously nominated executors, trustees and guardians who may no longer be appropriate or willing to carry out their duties.

With offices located in Greenwich and Westport, the attorneys at Broder & Orland LLC offer comprehensive guidance through the wide range of legal issues that arise during divorce as well as those that may be impacted as a consequence.  We are knowledgeable in identifying issues that may arise post-dissolution, and whenever appropriate refer our clients to Trusts and Estates attorneys to make sure estate plans may be carried out as intended.