Wills And Divorce In Virginia

July 08, 2011 (Press-News.org) You've done your homework and listened to all the experts and their admonitions that everyone should have a will. Then, as it often does, life intervenes and you now find yourself in a divorce. What do you do with your will now?

The Virginia General Assembly recognized that this could cause problems. If you died suddenly, you probably wouldn't want all of your wealth and assets being transferred to your ex-spouse.

Section 64.1-59 of the 1950 Code of Virginia was created to modify your will automatically immediately upon divorce.

A court in a case notes: "The General Assembly, in evaluating the advisability of changing the law, undoubtedly concluded that the number of forgetful testators who would be benefited by the statute far exceeded the number of careful testators who might be inconvenienced by its enactment."

The language of the statute follows in italics:

If, after making a will, the testator is divorced a vinculo matrimonii or his marriage is annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse.

This means divorce stops the transfer of any property to your former spouse.

Any provision conferring a general or special power of appointment on the former spouse and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise, shall also be revoked.

This prevents your ex-spouse from becoming the executor or having any role that allows them to control or distribute your estate.

Property prevented from passing to a former spouse because of revocation by divorce or annulment shall pass as if the former spouse failed to survive the testator.

In the will, your ex-spouse will be treated as if he/she predeceased you, and the assets pass to the next-in-line heir.

The other provisions of the will conferring a power or office on the former spouse shall be interpreted as if the spouse failed to survive the testator.

Any other transfer of authority to your ex-spouse will also be treated as if your ex-spouse predeceased you.

If the provisions of the will are revoked solely pursuant to this section, and there is no subsequent will or inconsistent codicil, the provisions shall be revived upon the testator's remarriage to the former spouse. No change of circumstances, other than as described in this section, shall be deemed to revoke a will.

This allows any invalidated sections to be made valid again should you and your ex decide to remarry.

This section prevents unintentional asset transfers to an ex-spouse in a will. What it doesn't do is fix any problems with a Trust or life insurance product. It also, clearly, does not adjust any other gifts within the will to specific heirs.

This legislation does not anticipate your death while your divorce is pending. Therefore, unless you want your assets to go to someone you have decided to divorce, you need to speak with an experienced estate planning attorney for what steps to take to foreclose such an opportunity. You would need to change any non-probate transfers (trusts and life insurance) and draft a will that meets your current family situation. You also would want to contact your insurance agent to change beneficiaries.

Article provided by Law Office of Raymond B. Benzinger, P.C.
Visit us at www.benzingerlawfirm.com