Beyond The Will, Client Compass

Reinstating an Ex-Spouse in Your Estate Plan

May 21, 2020


As previously discussed in Patricia Malley’s post “Estate Planning After Divorce”, the Massachusetts Uniform Probate Code (“MUPC”) automatically removes a former spouse – and their relatives – as beneficiaries, nominated fiduciaries, or powers of appointment from any revocable estate planning documents (i.e. a will or revocable trust). In most cases, this rule instantly provides the sort of global disinheritance that one would expect a divorcing party would want for their ex-spouse. However, it is not uncommon for ex-spouses to have good reasons, personal or financial, to keep each other in the picture for estate planning. For example, divorcing parties routinely name their ex-spouse as the beneficiary of a life insurance policy as part of the divorce settlement. In rarer cases, divorcing parties may agree to set up trusts for the minor children, in order to leave their estate to the benefit of the children, and nominate the other parent, their ex-spouse as trustee.

So, how does a person avoid or undo automatic revocation of provisions for their ex-spouse? There are three exceptions to the rule – which may be traps or opportunities, depending on how you look at them – and two ways to revive provisions for an ex-spouse after divorce.

The three exceptions carved out in the MUPC can be found in G.L.c. 190B, § 2-804(b), and apply in the following circumstances:

First, where the governing instrument (i.e. a will or revocable trust) has “express terms” that anticipate a divorce or annulment and provide for the future or past ex-spouse anyway. In effect, this practice combines estate planning and elements of a pre- or post-nuptial agreement regarding your estates. It can be used creatively in a variety of ways and for a similar variety of purposes, which are beyond the scope of this article.  However, it also raises significant issues, for example, whether you want all the bequests to your spouse and their relatives to survive a divorce, or only some of them. If a divorce does take place, such provisions may be contested by other beneficiaries – including irate ex-in-laws – who stand to receive more from the decedent’s estate if you are statutorily disinherited.  Individuals who want their estate plan to include language that defeats the automatic revocation of provisions regarding ex-spouses (and their relatives) should sure you have counsel who is experienced and knowledgeable in the area.

Second, where there is a court order.  It is worth noting that court orders are not statutorily required to have “express terms” anticipating the divorce. These exceptions are rare, as courts tend not to order individuals to make (or not make) changes to their estate plans or nominations.

Third, where there is a contract relating to the division of the marital estate between the parties that addresses their estates. In this case, the contract can be made before or after the parties are married, divorced, or their marriage is annulled – i.e., inheritance rights, beneficial interests in revocable trusts, or nominations to serve as personal representative or trustee set forth in a pre-nuptial agreement, post-nuptial agreement, or divorce agreement are exempt from the statute.  More information on that can be found in Tiffany Bentley’s post “Spousal Disinheritance Through Prenuptial and Postnuptial Agreements”. In any case, individuals who have or may have interwoven estate planning and marital contracts should be careful to find counsel who understands the relationships between these documents, to avoid unintended consequences.

If the divorce or annulment has taken place and no exceptions apply, a party has two additional options. They can revive the provisions of their estate plan regarding an ex-spouse by remarrying that individual.  G.L.c. 190B, § 2-804(b)(2)(e). That revival applies to all provisions that were nullified by the divorce, including those made for your ex-spouse’s relatives.

Alternatively, parties have the option to revive the interests, nominations, and appointments of an ex-spouse or their family members by executing a new estate plan after the divorce or annulment takes place. The automatic revocation only applies to governing instruments that were executed prior to the divorce or annulment.  G.L.c. 190B, § 2-804(a)(4). If possible, individuals should re-evaluate their estate plan following a divorce, preferably with experience estate planning counsel, to account for the resulting changes in assets, income, expenses, and relationships. Estate planning is often the last thing a person may want to do – and often don’t, which is perhaps why the automatic revocation statute exists – but it is a form of spring cleaning needed to keep your estate and life-planning in good order.

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