Your Family Matters

What impact does divorce have on your will?

On Behalf of | Jul 21, 2022 | family law

You’ll have immediate concerns on your mind when you embark upon a divorce. Things like child custody and property division are likely to be among your priorities. Estate planning may not be at the forefront of your mind but it’s important to understand that the divorce is going to affect a will you’ve already executed.

Revocation upon divorce

When two people marry and one of them has a will, it’s very common to name their spouse as the beneficiary of some, or all, of their assets. It’s also common to name the spouse as executor of their estate. But once the divorce is on the table, you may no longer wish for your spouse to retain those designations.

Illinois recognizes this instinct and is also aware that a divorcing spouse may not think to change their will, considering that the divorce itself will be the most important thing. As such, it has a statute in place that automatically revokes any provision in your will that designates your spouse as either a beneficiary or executor.

Your will itself is not revoked—anything in it that does not concern your former spouse is still valid. The law creates a legal fiction, acting as if your ex-spouse died before you did, even if they haven’t. If you pass away without changing your will, any designation still in it regarding your spouse will be treated as if you had died intestate.

The best option is to execute a new will so that your ex-spouse is removed and you avoid the uncertainty of intestate succession. Or, in the event that you want your ex-spouse to remain in the will in some capacity, you should still make a new will, once again including your spouse—this will overcome the automatic revocation imposed by Illinois law.