This is a common question that arises when a divorced person passes away. The rules surrounding inheritance and divorce can be complicated. In general, whether a divorced wife can inherit depends on the laws of the state, how the divorce decree divided assets, if there is a will, and other factors.
The Impact of Divorce on Inheritance Rights
When a couple gets divorced, their marriage is legally terminated. This typically severs all legal rights and responsibilities between spouses, including inheritance rights. However, inheritance laws vary by state and a divorced spouse may still have inheritance rights in some cases.
Some key things to know:
- In community property states, divorce typically terminates a spouse’s right to inherit community property assets. These include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.
- In equitable distribution states, inheritance rights are determined by how assets are divided in the divorce decree. If the decree specifically terminates inheritance rights, the ex-spouse cannot inherit.
- In all other states, a divorced spouse is generally treated the same as any other heir-at-law and may inherit a share of the deceased’s estate if there is no will disinheriting them.
The main options for leaving inheritance to an ex-spouse are through a will or beneficiary designations on assets like life insurance or retirement accounts. This specifies their inheritance rights despite the divorce.
If There is a Will
If the deceased left behind a legally valid will, it typically determines whether a divorced spouse can inherit. A will can specify:
- The ex-spouse is intentionally excluded and gets nothing.
- The ex-spouse receives a certain amount or percentage.
- The ex-spouse receives certain assets only.
- The ex-spouse is treated the same as any other heir.
If the will refers to the “spouse” without specifying divorce or using the ex-spouse’s name, it may be up to interpretation whether this excludes the ex or not. A divorce subsequent to writing a will typically revokes provisions made to an ex-spouse unless the will expressly states otherwise.
Example of a Will Provision Leaving Inheritance to Ex-Spouse
“I leave my entire estate to my ex-wife, Jane Doe.”
This clearly delineates the intent to have the estate pass to Jane despite no longer being married.
If There is No Will
If there is no will, state laws provide default inheritance rules. An ex-spouse typically falls into one of these categories:
- Surviving spouse – Very few states still treat an ex-spouse as a surviving spouse for inheritance. This occurs in Delaware, Hawaii, Kansas, and Wyoming only.
- Heir-at-law – In most states, an ex-spouse has inheritance rights as an “heir-at-law.” The share depends on who else survives the deceased.
- No inheritance rights – Some states completely terminate inheritance rights upon divorce. These include Alabama, Michigan, New Hampshire, New York, Oklahoma, Oregon, South Carolina, Texas, Virginia, and Wisconsin.
To determine an ex-spouse’s inheritance rights absent a will, you must examine the laws in the state where the deceased resided. An experienced probate attorney can provide guidance.
If There are Beneficiary Designations
Inheritance does not only pass through wills or state laws. Beneficiary designations on accounts like life insurance policies, retirement plans or bank accounts also dictate asset distribution.
These types of designations typically override will provisions. The person named as beneficiary will inherit the asset, even if left to someone else in the will or disinherited by state law. This includes an ex-spouse named before the divorce.
However, most states have laws revoking an ex-spouse as the beneficiary upon divorce. You must check the specific state statutes. The deceased must also re-name a new beneficiary – divorce alone does not change the designation in most cases.
If Divorce Decree Specifies Inheritance
A divorce settlement agreement incorporated into a final divorce decree can include provisions related to inheritance. For example, it may require one spouse to maintain life insurance for the ex-spouse’s benefit.
Or the decree may specify certain assets that will pass to the ex-spouse. This may occur as part of a property settlement or spousal support arrangement.
Terms related to inheritance in a divorce decree are binding. The court will enforce these even if contrary to what a will states.
Example Divorce Decree Excerpt
“The husband shall maintain the existing $250,000 life insurance policy naming the wife as beneficiary until such time as spousal support is terminated.”
This decree provision overrides any will leaving the policy proceeds to someone else. It also overrides state laws revoking the ex-wife’s beneficiary status.
How Long After Divorce Does Ex-Spouse Inherit?
In states where an ex-spouse maintains inheritance rights, there is often a time limit. Rights may be revoked if the deceased did not get around to changing their will or beneficiaries within this timeframe after divorce.
For example, Minnesota law allows an ex-spouse to inherit under a will written prior to dissolution. But this only applies if the decedent passes away within 180 days of the divorce date.
Other states may have limits of a few months up to several years. You need to check statutes for the state law timeframes.
Exceptions – When an Ex-Spouse Typically Can Inherit
While divorce severs inheritance rights in many cases, there are some scenarios where an ex-spouse may still inherit a share:
- Will expressly allows inheritance – If a will executed post-divorce names the ex-spouse as a beneficiary, they will inherit under the will.
- Divorce decree requires inheritance – If the divorce settlement provides for inheritance, like maintaining life insurance, that must be followed.
- Beneficiary naming unchanged – If the ex-spouse remains named as a beneficiary on an insurance policy or bank account, this controls over a will or state law.
- State treats ex as heir-at-law – In states where an ex is still considered an heir-at-law, they may inherit a share if not disinherited.
- No other heirs exist – If no other heirs like children or parents survive, an ex-spouse may inherit by default in some states.
Can an Ex-Spouse Be Entirely Disinherited?
In almost all cases, a deceased person can disinherit an ex-spouse so they take nothing. Options include:
- Naming someone else as the beneficiary on all assets like retirement accounts and life insurance policies.
- Drafting a new will after the divorce leaving the entire estate to other heirs.
- Specifically disinheriting the ex-spouse in the will to avoid ambiguity.
- In community property states, properly dividing all community property through the divorce proceedings.
Completely preventing an ex-spouse from inheriting requires affirmatively taking action through beneficiary changes, a will, or thorough divorce property settlement. In most states, inheritance can be avoided but it takes proper steps to do so.
What If You Remarry Your Ex-Spouse?
If divorced spouses later remarry each other, inheritance rights are typically restored as if they had never divorced. Marrying an ex-spouse nullifies the previous dissolution.
However, inheritance rights may not spring back automatically in some cases. It depends on the laws of the state and factors like how assets were divided in the divorce.
To avoid any disputes, legal experts recommend that remarried spouses draft a new will and update beneficiary designations after remarrying. This clearly confirms intent and helps the inheritance process go more smoothly if one spouse dies.
Consult an Attorney
The impact of divorce on inheritance rights is complex and fact-specific. The laws vary considerably by state and individual circumstances are important. Before making assumptions, meet with a local probate attorney to discuss your situation.
An attorney can explain your state’s laws, account for nuances in your divorce decree, and help craft an appropriate estate plan to ensure assets pass how you desire. This can provide peace of mind and avoid inheritance disputes down the road.
Conclusion
Whether a divorced spouse can inherit depends foremost on any will or beneficiary designations left behind by the deceased. If none exist, applicable state law determines if an ex has inheritance rights.
In general, divorce severs most inheritance rights. But in some states, an ex-spouse is still treated as an heir-at-law absent exclusion in a will. Divorce decrees and beneficiary statuses not updated after divorce can also allow inheritance in some cases.
To avoid disputes, it is wise to draft a will and revise beneficiary names after a divorce to expressly confirm or deny an ex-spouse’s rights. With proper planning, inheritance can be controlled as desired despite the dissolved marriage.
