Divorce and its Effect on Estate Planning in Tennessee

Life is full of change. Many of those life changes can reach much farther than people realize. While a large portion of the population has been affected by a divorce, often those individuals do not understand the impact that it may have on their estate planning documents. Exactly what happens to a last will and testament or power of attorney after there has been a divorce? It is important to understand what can happen if your documents are not updated. If you have questions how a major life change may affect your estate plan, contact the Nashville estate planning lawyers at The Higgins Firm.

One of the most basic estate planning documents is the last will and testament. What impact does a divorce have on a will in Tennessee? If a will is executed by an individual who later becomes divorced, Tennessee law eliminates the ability of the former spouse to recover under the will. Similarly, the divorce also revokes any power of appointment or nomination of the former spouse as executor, conservator, or guardian within the will. Should the individual desire to keep the former spouse as a beneficiary of the will or have the former spouse appointed, the will would expressly need to provide that the specific Tennessee statute does not apply. Only a divorce or annulment will result in the automatic revocation. A divorce will have the same effect preventing a former spouse from recovering from an individual who died intestate, or without a will. A formal separation of the spouses will not revoke the ability to recover under the will or under the laws of intestacy. If you have gone through a divorce or separation, it is important to update your will shortly thereafter to ensure that your assets pass to the individuals that you so desire.

However, a divorce will not automatically revoke a former spouse from recovering as a designated beneficiary. A beneficiary designation on any life insurance policy or other death benefits is considered to be a contract between the participant and the company or organization issuing the policy. Because these beneficiary designations are considered to be contractual, the designation can only be changed by complying with the terms of the contract, generally a written beneficiary designation form. In other words, a divorce or drafting a new will cannot automatically revoke a former spouse’s beneficiary designation. It is very important to change these designations shortly following a divorce.

One other area of estate planning potentially impacted by a divorce is with a power of attorney for health care or advance directive. A power of attorney for health care or advance medical directive will automatically revoke a former spouse’s authority as the “attorney-in-fact” under the document. Following a divorce, the former spouse no longer has the ability to make decisions regarding the health care of a former spouse. Despite the automatic revocation, it is important to have listed an alternate in place to serve in such a role or to draft a completely new document appointing someone to serve in that particular role.

In contrast, a financial power of attorney, which is a completely separate estate planning document, will not be automatically revoked upon divorce or annulment. The Tennessee statute that revokes a power of attorney for health care does not specifically revoke a financial power of attorney. For that reason, it is very important to update your financial power of attorney following a divorce.

If you have questions regarding your estate planning documents, contact the Tennessee estate planning attorneys at The Higgins Firm.