https://www.trustworthy.com/blog/does-right-of-survivorship-trump-a-willIf you’re a divorcee, you may wonder if you can claim your ex-spouse’s property after their death. The answer depends on several factors, including the terms of the divorce settlement and the deceased’s will.

We'll explore a divorced spouse's rights to their ex's property and provide guidance on handling this complex legal landscape. We'll also discuss how Trustworthy can help you organize important documents and maintain clear records to simplify the process.

Key Takeaways

• A divorced spouse's right to claim their ex's property after death largely depends on the divorce settlement agreement.

• If the deceased ex-spouse left a valid will, the terms of the will generally override any previous divorce agreements.

• It’s important to protect your rights by keeping organized records of your divorce settlement, wills, trusts, and property deeds.  

Understanding Divorce Settlement Agreements

This divorce settlement outlines how assets and property will be divided between the former spouses and includes provisions for what happens in the event of either party's death.

For example, a divorce settlement might specify that each spouse keeps their own separate property. The agreement may also stipulate that certain jointly-owned assets, like a family home or bank account, will be sold and the proceeds divided equally.

If the divorce settlement includes clear instructions for what happens to property after one spouse dies, those terms will generally be upheld as long as they don't conflict with other legal documents or state laws. However, if the agreement is silent on this issue or the ex-spouses never finalized a formal divorce settlement, the division of property after death can become more complicated.

It's important to note that divorce doesn't automatically nullify any existing wills or beneficiary designations. If your ex-spouse named you as a beneficiary and never updated it after the divorce, you might still be entitled to those assets. 

The Impact of Wills on a Divorced Spouse's Inheritance Rights

The terms of a valid will typically take precedence over any previous divorce agreements when it comes to the distribution of their assets. In other words, if your ex-spouse's will explicitly states certain property should go to someone else, those wishes are typically carried out, regardless of what your divorce settlement says.

However, there are some exceptions to this rule. In most states, if you and your ex-spouse divorced after they created the will, any provisions leaving property to you are automatically revoked. So, even if your ex never updated their will after the divorce, you likely wouldn't be entitled to any assets left to you in the outdated document.

It's also worth noting some states have laws in place to protect the inheritance rights of a divorced spouse. For example, a few states allow a divorced spouse to claim a share of their ex's estate if they were financially dependent on them at the time of their death. This is the case even if the will doesn't include any provisions for the ex-spouse.

If you're unsure about your rights to your deceased ex-spouse's property under the terms of their will, it's best to consult with an experienced estate attorney. They can help you understand the specific laws in your state and advise you on the best course of action.

Protecting Your Rights Through Proper Documentation

The legal landscape of divorce and inheritance can be challenging. However, there are steps you can take to protect your rights and simplify the process.

One of the most important things you can do is keep clear, organized records of all relevant documents, including:

Divorce Settlement Agreements

This document is crucial in determining a divorced spouse's rights to their ex's property after death. It specifies what each party is entitled to and what happens to jointly-owned assets.

When reviewing an agreement, look for provisions addressing the distribution of property in the event of either spouse's death. Some may state that each spouse's separate property will remain theirs. However, others might require that certain assets be sold and the proceeds be divided.

Keep in mind that divorce settlement agreements are not always the final word on inheritance rights. If the deceased ex-spouse left a valid will conflicting with the terms of the divorce agreement, the will may take precedence. 

To protect your rights, keep a copy of your divorce settlement agreement in a secure, easily accessible place. Trustworthy can provide a digital vault for storing this important document, along with any other relevant records related to your divorce and estate plan. With the platform’s sharing features, you can grant permission to others to access the document as well.

Wills and Trusts

If your ex-spouse left a valid will, it will typically supersede the terms of your divorce settlement agreement.

However, it's important to note divorce can impact the validity of certain provisions in a will. In most states, any gifts made to an ex-spouse in a will are automatically revoked upon divorce unless the document specifically states otherwise. For example, even if your ex-spouse's will named you as a beneficiary, you may not be entitled to those assets if the will was created before your divorce.

Trusts can also affect the distribution of an ex-spouse's property after death. If your ex-spouse had a living trust, the terms will determine who inherits those assets, regardless of the divorce settlement agreement.

Property Deeds and Titles

When a divorced spouse dies, the distribution of any jointly-owned property will depend on how the property was titled and the terms of the divorce settlement agreement.

For example, if you and your ex-spouse owned a home together as joint tenants with rights of survivorship, you automatically inherit their share of the property after their death. This is regardless of the terms of the divorce agreement or any will they may have left.

On the other hand, if the property was titled as tenants in common or was solely owned by your ex-spouse, the distribution of the property is governed by the terms of their will.

It's important to review any property deeds and titles you shared with your ex-spouse and understand how they impact your inheritance rights. Keeping copies of these documents in a secure, easily accessible place like Trustworthy can help streamline the legal process after your ex-spouse's death.

Beneficiary Designations for Life Insurance Policies, Retirement Accounts, and Other Assets

Beneficiary designations on life insurance policies, retirement accounts, and other assets can also impact a divorced spouse's inheritance rights. These designations determine who will receive the assets in the event of the account holder's death, regardless of the terms of a will or divorce settlement agreement.

It's not uncommon for people to forget to update their beneficiary designations after a divorce, which can lead to unintended consequences. If your ex-spouse named you as the beneficiary on their life insurance policy or 401(k) and never updated it after your divorce, you could still be entitled to those assets after their death.

As a New York estate planning attorney, Martin M. Shenkman, explains: "The only exception where an ex-spouse could perhaps be on the receiving end of your money when you die is if you neglect to change your beneficiaries under a retirement plan."

To avoid any confusion or disputes, review and update your own beneficiary designations after a divorce. Communicate any changes to your ex-spouse and any relevant financial institutions. Keeping clear records of these designations can also help ensure that your wishes are carried out after your death.

Financial Statements and Account Information

Having access to accurate financial statements and account information is important. This includes bank statements, investment account statements, tax returns, and any other documents that provide a clear picture of the deceased's assets and liabilities.

These documents can help you understand what assets are available for distribution. They also highlight any debts or obligations that may need to be settled before the inheritance can be passed on. They can also be used to verify the accuracy of the divorce settlement agreement and ensure financial provisions are being followed.

Keeping organized records of all financial statements and account information related to your divorce and your ex-spouse's estate can make the legal process much smoother and less stressful. Trustworthy can provide a secure, centralized platform for storing and organizing these important documents, making it easy to access them when needed.

Frequently Asked Questions

How does a divorce settlement agreement affect a divorced spouse's inheritance rights?

The divorce settlement agreement outlines how assets and property will be divided between the former spouses. If it includes clear instructions for what happens to property after one spouse dies, those terms will generally be upheld as long as they don't conflict with other legal documents or state laws.

What if there is no will?

If the ex-spouse passed away without leaving a valid will, the distribution of their assets is governed by the state's intestacy laws. In most states, a divorced spouse is not considered an heir under intestacy laws and is not entitled to any of their ex's property.

Can divorce impact the validity of certain provisions in a will?

Yes, in most states, any gifts or bequests made to an ex-spouse in a will are automatically revoked upon divorce unless the document specifically states otherwise.

What documents should a divorced spouse keep to protect their inheritance rights?

Important documents include the divorce settlement agreement, wills and trusts, property deeds and titles, beneficiary designations for life insurance policies and retirement accounts, and financial statements and account information.