Does Your Ex-Spouse Inherit Your Estate If You Unexpectedly Die?
Guest post by Lisa M. Cukier, Esq., Partner at Burns & Levinson LLP. Ms. Cukier concentrates her practice in all aspects of probate litigation, fiduciary litigation, planning & litigation for blended families, same-sex couples, guardianship, conservatorship, mental health law, elder law and domestic relations..jpg)
You are divorced .... but wait, if you unexpectedly pass away, does your ex still have rights to your estate?
One spouse’s waiver, in a divorce or separation agreement, of an interest in beneficiary designations is not sufficient to bind the plan administrator, who is obligated to distribute the funds according to the beneficiary designation, even if the parties are divorced at the time of death. In fact, a spouse’s waiver of her or his interest in the other’s life insurance or retirement plan or assets designated as “TOD” (“Transfer On Death”), which assets are retained in the division of property in the divorce, will likely be ineffective. On the death of the person who made the beneficiary designation, the former spouse will receive the death benefit. You must take the additional step of revoking or changing the designation of your former spouse as beneficiary of such accounts, assets, and plans.
Although a divorce may not automatically change a beneficiary designation with respect to life insurance policies and retirement accounts, divorce will alter your Will. The law recognizes that after a divorce, most people do not want to leave their former spouse any of their assets by Will. Thus, the law currently states that a divorce will effectively “revoke any disposition or appointment of property made by the will to the former spouse.” At your death, and absent any provision to the contrary, any property designated in your will that is supposed to pass to your former spouse will instead pass on as if the former spouse failed to survive you.
My Ex husband passed away recently without a will and we were married 36 years and have 4 children together, divorced in 2002 and the Quardo's were never completed due to his attorney not finishing up on anything, My ex did remarry which lasted 6 years and now she wants everything. Do I have any recourse? What is my next step? Also one of my daughters is filing for executor of his estate and his wife of 6 yrs. is opposing this. How do we handle this! His spouse already cashed in an insurance policy with my daughters name one it less than 60 days of his death, is that legal?
Hi Patricia,
Wow what a horrible situation. I am afraid that it is so complex that I can't even begin to comment on it with the little information I have. My advice to you is to get a good probate (divorce and will) lawyer in your jurisdiction and go over it with them. Do this as soon as possible as time frames may be running which will cut off your rights.
Best, Nancy
My Fiance's father just passed away recently. No one knows if there is a will, but he did have an insurance policy. His ex wife ended up recieveing the payout of the policy. However they had no children together. Among my Fiance there are 3 other siblings. My question is if whether or not the ex wife can legally recieve the policy in the state of ohio, if in fact they have been divorced for some time?
Hi Angel, I wish I could help you but I know nothing about Ohio law. In general, in Massachusetts if the ex spouse has been named in the policy but the divorce agreement has freed him of the requirement to maintain the policy his kids might have grounds for litigation. They should contact a good probate attorney in Ohio who would be able to help them out.
Good luck,
Nancy