Submitted by Anonymous on Mon, 03/29/2010 - 07:52
My uncle was just divorced from his wife of five years and he asked me if he needed to make any changes to make sure his ex spouse did not inherit anything from his estate. (He is under the impression that the law in MA prevents his Ex from inheriting.) What does Massachusetts law say about that? Does he need to change his will? Any other considerations? I don't think his 'estate' is all that big at this point.
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Editor's Response
Attorney Bernardin is correct: There can be some issues with non-probate assets, such as an insurance policy or retirement plan, where the ex spouse remains as the named beneficiary. Even if the ex signed a waiver of her beneficiary designation as part of a divorce agreement, the insurance company may be obligated to distribute the funds in accordance with the policy designation. So, you should tell your uncle to change is beneficiary designation for any accounts, policies, etc.
On the other hand, if your uncle only has probate assets (follow this link for an explanation of the difference between probate and non-probate assets in MA), the outcome may be different. Massachusetts General Laws Chapter 191, Section 9 states in relevant part: "If, after executing a will, the testator shall be divorced or his marriage shall be annulled, the divorce or annulment shall revoke any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse, as executor, trustee, conservator or guardian, unless the will shall expressly provide otherwise." Most wills contain similar language. Accordingly, those probate assets will pass as if your uncle's ex died before him. Again, advice your uncle to talk to an estate planning attorney.
Recent Divorce
Your Uncle's right in that, for the most part, a divorce writes the ex out of the estate plan.
BUT - he should review the named beneficiaries on his life insurance policies, the designated beneficiaries on any retirement plans, and generally review his assets to make sure that they are properly structured to reflect his current marital status.
He may also want to review the existing documents. I would expect that he named his spouse as his agent under the power of Attorney and Health Care Proxy, and possibly as executor of his estate. Although she may be written-out of those documents by operation of law, he still needs to make sure that he has the proper agents named, and that he has enough "depth on the bench".
So my suggestion is that some planning is still prudent.
Peter
Update
For this and other questions dealing with probate in Massachusetts, readers should be aware that Massachusetts has adopted the Uniform Probate Code. The above question may be answered differently under the new law.