Marriage and divorce are highly-contested topics of discussion. In addition to those sensitive topics are the laws surrounding them, which are not the same in every state. Here in Massachusetts (MA), the laws are a bit strict in regards to marital status and your will. Because marriage is a serious commitment, it’s a merger of two lives and everything in those lives. In this blog, I will be discussing how divorce in Massachusetts affects your will. First and foremost, know that your estate plan and marital status change synonymously. It’s never one or the other; always both.

Uniform Probate Code (UPC)

The Uniform Probate Code was a code of laws that dictate the outcomes of your current estate plan upon marriage or divorce. I’ve broken down each of them below for your consideration. 

Marriage & Intestate Share

In Massachusetts, it was dictated by law that a will would be revoked unless it was clearly introduced as part of a marriage. Now with the Uniform Probate Code in place, it prevents a will from being automatically revoked by a marital union. 

Under current Massachusetts law, in the event of a spouse’s death, the surviving spouse is entitled to an intestate share. Essentially, this is a share of the deceased spouse’s estate equal to the share he or she would have received had there not been a will in place. An intestate share has several key circumstances to be aware of, which are listed here: 1. If the share would compromise property set aside to a child who was born before the marriage and not a child of the surviving spouse; 2. If the will was expressly made in contemplation of the marriage; and 3) If the deceased spouse provided for the surviving spouse through transfer outside the will (e.g. through a will or life insurance) and these transfers were intended to be in lieu of provisions in the will.

During Marriage

As a result of marriage, your new spouse is automatically entitled to benefits under your current estate plan. Please don’t assume everything is set forth and set forth correctly. Take time to revisit your estate plan to ensure everything you wish for your spouse to have is clearly stipulated in your will. Secondly, be sure to seek out any potential estate tax marital deductions and clearly indicate the fiduciary responsibilities of your spouse. With a knowledgeable attorney, transferring assets between married spouses is a smart strategy for estate tax planning. For example, spouses often will share the family’s assets in order to fund a trust by utilizing each spouse’s estate tax exemption.

Divorce In Massachusetts

"divorce in MA"With the inception of the Massachusetts Uniform Probate Code, dissolution of marriage drastically changes your will. Previously, a divorce revoked the testamentary dispositions to a decedent’s former spouse, revoked any power of appointment exercisable by the former spouse under the decedent’s estate plan, and revoked any appointments of the former spouse as an executor, trustee, conservator or guardian of the decedent or their estate. This law was expanded by the court to include provisions not just in wills, but also in revocable trusts executed concurrently with the testator’s will. It’s worth noting that under separate laws, spouses who held powers of attorney and health care proxies were also revoked of their appointments at the time of divorce. I will be discussing health care proxies later on as well to give clarification on how it relates to a divorce and will.

For reference, I wanted to include health care proxy for those who may be looking to learn about it within the confines of Massachusetts law: A health care proxy is revoked under divorce upon “(i) execution by the principal of a subsequent health care proxy”, or “(ii) the divorce or legal separation of the principal and his spouse, where the spouse is the principal’s agent under a health care proxy.”

The Massachusetts Uniform Probate Code states that a divorce revokes all revocable responsibilities (all fiduciary nominations in wills, revocable trusts, health care proxies and durable powers of attorney) to the former spouse. Regardless of where those responsibilities are set forth, a divorce removes them all entirely.

In Massachusetts, a divorce automatically removes the former spouse as a beneficiary of a will or trust. Automatically, these roles are revoked, but as a testament to good faith, be sure to communicate the changes to every person directly involved. There are a few instances where the Code’s laws fail to revoke responsibilities. Those instances mainly fall under life insurance policies and retirement planning. At any rate, it’s critical upon divorce for a former spouse to be removed as a beneficiary of the will in question.

A caveat to the Massachusetts Uniform Probate Code is that any irrevocable appointments are protected. This is because the Code pertains only to revocable documents and appointments. Therefore, life insurance trusts are protected because they are irrevocable.

Finalizing Your Divorce

Assuming your former spouse has no responsibilities and has been removed from your estate plan, you should consider revising your estate plan. I think of it as revisiting your estate plan as an individual; revert back to your estate plan you had before you were married. Rid of any confusion on your current estate plan. Protect yourself and make sure your former spouse has no powers in relation to your current estate plan. If you have children, ensure your spouse’s roles and responsibilities are clearly and appropriately designated. It’s important to examine your estate plan upon finalizing divorce to remove any confusion. Often times, this can become a problem related to financial institutions.

How Divorce In Massachusetts Impacts An Estate Plan

Although uncommon, it’s possible that a client wishes for his or her ex-spouse to remain part of their estate plan after a divorce. The proper solution is to draw up a new trust or will and clearly stipulate those specific wishes of both parties. Additionally, a new power of attorney and health care proxy should be created. In both documents, updated fiduciaries should be named to prevent confusion in the uncommon circumstances. If you wish to protect your health information, be sure to bring up the creation of a new HIPAA form to your attorney. This will effectively prevent your ex-spouse from having access to your health information.

On top of a new power of attorney and health care proxy, be sure to definitively update your beneficiary designations. Define how financial assets such as IRA’s, 401k’s, and investments will be divided or inherited and by whom. Keep in mind that through the process of probate, those assets will be distributed to the beneficiaries set forth. Make sure the proper assets are going to the right people. couples should do new beneficiary designations for all items with such designations. These items typically pass directly to the designated beneficiary outside of probate, so failure to change who will receive them is often not challengeable in probate court.

Going through a divorce can be very stressful time for the parties involved. It can take its toll both emotionally and financially. Protection is the most important part so if you must go through the process, be safe and cover all your bases.

For questions regarding any of the topics discussed in this blog, please contact me directly at [email protected].

Thank you for reading,
Suzanne Poitras