If divorce is on the horizon for you, it’s important to understand how the divorce will affect your estate plan, what changes you’ll likely need to make and how to schedule those changes.
One of the first things many people ask is whether they can disinherit their spouse before the finalization of the divorce. Unless you have a prenuptial or postnuptial agreement stating otherwise, your spouse has a right to claim a portion of your estate while you’re still legally married.
What’s an “elective share?”
Even if you remove their name from your will and other documents as a beneficiary, Maryland allows surviving spouses to take an elective share of a deceased spouse’s estate. According to Maryland law, that share is “one-half of the value of the estate subject to election, reduced by the value of all spousal benefits” if there are no children, and one-third if there are children.
What about your spouse’s fiduciary responsibilities?
You can make other changes to your estate plan at any time. For example, if you no longer want your soon-to-be ex to have power of attorney (POA) over your health care or to be the executor (personal representative) of your estate, you can designate someone else. Nothing in the law says that these fiduciary responsibilities have to be assigned to the spouse.
It’s important to know that under Maryland law, “all provisions in the will relating to the spouse, and only those provisions, shall be revoked unless otherwise provided in the will or decree.” That means unless you have contingent beneficiaries or administrators already included, you’ll need to name others. You can keep your spouse in your estate plan if you choose to, but you’ll likely need to include a provision stating that you have chosen to do so even though they’re no longer your spouse.
Your divorce agreements may require other changes
Likely, you’ll need to wait until after your divorce to finalize all of the changes to your estate plan. There may be provisions in your various divorce agreements that require you to provide for your spouse after your death, for example.
It’s a lot to think about at a time when you may already be overwhelmed by the divorce. Getting professional estate planning guidance as soon as possible can help you better navigate the necessary modifications.