It is more common than you might think that a divorced person leaves an estate plan naming his or her ex-spouse in one way or another. This can lead to an uncomfortable situation for surviving ex-spouses—they may be unsure as to what they are entitled to or what must be done in light of their nomination in the will. In Colorado, the answer to both questions is a straightforward “nothing.”
Under Colorado law, “the divorce or annulment of a marriage . . . [r]evokes any revocable [ ] disposition or appointment of property made by a divorced individual to his or her former spouse.” Therefore, any dispositions made to an ex-spouse in the decedent’s will (executed before the divorce) were revoked upon divorce. Or, put another way, even if the will says the ex-spouse should get something, this revocable bequest was fully revoked as soon as the divorce became official.
What if the ex-spouse was appointed as a personal representative under the decedent’s will, or as some other kind of agent in the decedent’s estate planning documents? Colorado law also provides that “divorce . . . revokes any revocable . . . nomination in a governing instrument nominating a divorced individual's former spouse or a relative of the divorced individual's former spouse to serve in any fiduciary or representative capacity, including a personal representative.” Therefore, if the ex-spouse was named as personal representative in the Decedent’s will, this nomination was automatically terminated by divorce, and the ex-spouse no longer possesses priority for appointment as personal representative. Likewise, any nomination of the ex-spouse under a power of attorney or medical power of attorney document was automatically revoked at divorce.
Note that for both bequests in a will and nominations as agent under a POA or MPOA, divorce causes a revocation only if the decedent executed the document in question before the divorce. So, if a person decides to name his or her ex-spouse in a will or as an agent after a divorce was finalized, the divorce has no effect on the decedent’s estate plan.
Were you named in your ex-spouse’s will? Or would you like to update your estate planning documents to reflect a recent divorce or re-marriage? Click “Get Started” above to set up an appointment with Kim Raemdonck, an experienced Colorado estate planning attorney.
