Probate Court & Divorce
A divorced person can face legal issues when his or her former spouse dies. How the court views the estate and legal heirs in probate is also impacted if a divorce action involving the decedent was started but not finalized before the person's death. Each state has its own laws for handling divorce and the problems it may create in a probate proceeding, which is the process the heirs must go through in court to receive shares of the estate, but some general rules still apply.
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Effects
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A divorced person no longer has any legal rights to the estate of a deceased former spouse. If the decedent left assets, possessions, or powers to an ex-spouse in a will, the divorce action itself automatically terminates and revokes these bequests and provisions. In these situations, the estate typically files a signed release from the ex-spouse, who can be taken to court to obtain this document. In some states, like Michigan, any provisions in a will for a relative of a former spouse are also canceled by divorce, unless the will was prepared after the action and specifically cites the divorce in its terms.
Jointly Owned Assets
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Assets that were jointly owned by both spouses prior to divorce may pass completely to the surviving ex-spouse in certain situations, no matter what an existing will may direct. When ownership of real property is taken by a married couple as joint tenants and one spouse dies, the surviving spouse becomes the sole legal owner of the property. If the couple divorced but never filed a new deed, the surviving ex-spouse is still recognized as the sole owner in some states. However, other states now view that a divorce can convert an existing joint tenancy to tenants in common, giving the living ex-spouse only half of the interest in the property.
Elective Shares
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Many states have laws limiting how much a spouse can be denied in a will, giving a surviving disinherited spouse an option typically referred to as an elective share. A divorced person does not have the right to an elective share in an ex-spouse's estate, but a person still in the process of divorce does even if there is a valid legal separation agreement in place. The amount of the estate a surviving spouse is entitled to take varies from state to state. For example, in New York, the surviving spouse can receive $50,000 or 1/3 of what is left of the decedent's estate after bills and other expenses, but in Florida, the elective share is 30 percent of the estate.
Spousal and Child Support
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Spousal and child support orders as a result of divorce end with the death of either party. In some divorce actions and agreements, the parties may stipulate that the obligated spouse maintain a life insurance policy payable to the recipient spouse. The value of the policy usually is calculated by an estimation of the total amount the recipient would have gotten over time until the end of the support obligation.
Exceptions
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Life insurance policies, retirement investments, and some other financial products are generally not governed by a will. These are bound to the designated beneficiary forms the account holder filled out while living. If an ex-spouse is the listed beneficiary on these documents, he or she will receive the proceeds from the accounts when the holder dies. Provisions in a will usually will not override beneficiary designations, although some states, like New York, are now taking steps to address this issue. If any wrongful death lawsuits are filed by the estate on behalf of the deceased, an ex-spouse is not entitled to a share of the proceeds.
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References
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