If you have been forward-thinking and responsible enough to create an estate plan, you likely were told that it would need to be amended when important family and life events occurred. One of those you may not have anticipated at the time is divorce.
If divorce is in your future over the coming months, you probably have some questions about how it will affect your various estate planning documents and when you can make the necessary changes to them.
Every situation is unique, which is why having experienced estate planning guidance is key. A topic that’s uppermost in many divorcing spouses’ minds is whether they can “disinherit” their soon-to-be ex and, if so, when that can be done.
Before the divorce is final
You can likely remove your spouse as a beneficiary at any time (impending divorce or not) unless you have a prenuptial or postnuptial agreement that requires their inclusion in your will or other documents. Under Indiana law, however, if you did that and then were to pass away while still legally married, your spouse could claim a share of your estate. That’s commonly known as an “elective share.”
How much they would receive depends on various factors, such as whether they are your first or subsequent spouse and whether there are children. If they gave up the right to an inheritance in a valid prenup or postnup, they likely wouldn’t be entitled to that elective share.
After the divorce is finalized
Once the final divorce decree is issued, Indiana law states that “all provisions in the will in favor of the testator’s former spouse are revoked.” That means any inheritance intended for your spouse would go the contingent beneficiary, if you designated one, once you’re no longer legally wed. If you have a contingent beneficiary and you’re fine with them getting the inheritance, you likely don’t need to make any immediate changes.
It’s important to note that if you still choose to leave your ex-spouse an inheritance or are required to do so by the terms of your divorce, you will need to update your estate plan to cover that.
It’s a good idea to review your estate plan early in the divorce process and then as the terms of the divorce are finalized. Having individualized estate planning guidance can help you to better ensure that your plan is updated appropriately and in accordance with Indiana law.
