If you and your spouse have decided to divorce, there are some changes you can and likely want to make to your estate plan. For example, you may no longer want them to have power of attorney (POA) over your medical decisions if you become seriously ill or injured.
Some changes can be made any time. However, others typically have to wait until the divorce is final.
Why most people can’t disinherit their spouse before the divorce
You can’t fully remove your spouse as a beneficiary while you’re still legally married unless they relinquish their right to a portion of your estate in a prenuptial or postnuptial agreement. If no such agreement is in place and you removed all beneficiary designations for your spouse, they would have the legal right to “renounce” your will if you passed away before the divorce becomes final.
Under Kentucky law, if a surviving spouse renounces the will, they’re able to “elect” to take the share of the estate they would be entitled to if their spouse had passed away with no will (known as “dying intestate”). That share varies depending on the type of asset, but it can be as much as half. A spouse is also allowed to renounce a will if they’re listed as a beneficiary but the asset value of their inheritance is less than they’d have received with no will in place.
How does the finalization of your divorce change your estate plan?
Once the divorce is final, you actually don’t have to remove your spouse as beneficiary. The law does it for you. The divorce decree revokes any “disposition or appointment of property made by the will to the former spouse.” However, you’ll want to change your beneficiaries unless you already have alternates listed.
Former spouses are also eliminated as “executor, trustee, conservator or guardian, unless the will expressly provides otherwise.” That means if you still want your ex to be your estate executor, have POA or be in any other position you previously designated (and people sometimes do), you’ll need to modify your estate plan to specifically state that. The same is true if you still want to leave them certain assets (or it’s required by your divorce agreement).
Your best course of action, if divorce is on the horizon, is to get sound estate planning guidance. This will help you knowledgeably review your estate plan and determine what changes you want or need to make.