Can an Estranged or Former Spouse Collect Under a Will?

Many married couples name their spouse as the sole beneficiary in a Last Will and Testament to transfer their estate to the spouse upon death. So long as that marriage remains intact, this does not pose a problem; however, when a couple separates and eventually divorces, the rights under a Will change.

North Carolina law severs the rights of a former spouse following the entry of a Divorce Judgment even if the deceased did not update his or her Will to remove their former spouse. North Carolina General Statute § 31-5.4 provides that after a divorce or annulment, all provisions of a Last Will and Testament in favor of a former spouse are automatically revoked unless specifically provided for in that Will. This prevents an ex-spouse from receiving money but also prevents the former spouse from serving as executor, trustee, conservator, or guardian. This law prevents a former spouse from subsequently benefiting from an ex-spouse’s death simply because he or she failed to update their Will.

Even though a former spouse’s rights under a Will automatically terminate at divorce, the Will itself otherwise remains in effect. If the Will does not name contingent beneficiaries, executors, or trustees, the estate will be governed by the intestacy laws of North Carolina, which defeats the purpose of carefully drafting a Will in the first place. Further, N.C.G.S. § 31-5.4 does not apply to other testamentary documents, such as a Healthcare Power of Attorney or Durable Power of Attorney. Many people would be reluctant to allow their ex-spouse to control medical or financial decisions after divorce, so it is important to remember to revoke these documents.

While a divorce automatically terminates an ex-spouse’s rights, N.C.G.S. § 31-5.4 does not apply during the 365+ day period of separation required in North Carolina before divorce can be sought from the Court. If one spouse dies during this period of separation, the provisions of his or her Last Will and Testament, including any which transfer property to the separated spouse, remain in full force and effect. As a result, we recommend our clients update and prepare a new Last Will and Testament, as well as other testamentary documents such as Healthcare Powers of Attorney and Durable Powers of Attorney, after separation.

Properly managing an estate is an important life-planning necessity to ensure one’s wishes, especially when going through separation and divorce. If you have questions about your estate or need to update your estate documents, please contact us at (704) 810-1400 to schedule a confidential consultation.

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