When a couple divorces, they typically go through a legal process to divide property and assets, determine child custody and support, and settle any other disputes.
However, divorce does not automatically sever all legal ties between the two parties, particularly if they share children. In the event of the death of one partner, the legal implications of divorce can be complex and require careful consideration.
In this article, we will explore the legal implications of divorce and common scenarios and solutions for ex-spouses after the death of their former partner.
Common Scenarios and Solutions
The following are common scenarios that may arise after the death of a former spouse, along with potential solutions:
The Deceased Ex-Spouse Did Not Leave a Will
If the deceased ex-spouse did not leave any will, their assets would be distributed according to the laws of the state where they resided at the time of their death. This is called intestate law.
Under intestate law, an ex-spouse would not be an heir and would not be entitled to any inheritance.
I’ll give you an example from my home state, Missouri. If a person dies without a will, the estate will be divided as follows:
1. If there is a surviving spouse:
- If there are no children, the entire estate goes to the surviving spouse.
- If there are surviving children who are also the surviving spouse’s children, the surviving spouse gets the first $20,000 and half of the remaining estate, while the other half goes to the children.
- If there are surviving children who are not also the surviving spouse’s children, the surviving spouse gets half of the estate, while the other half goes to the children.
2. If there is no surviving spouse, the estate is distributed as follows:
- Equally among the decedent’s children or their descendants.
- If there are no children or their descendants, equally among the decedent’s parents, siblings, or their descendants.
- If there are no parents, siblings, or their descendants, equally among the decedent’s grandparents, aunts, uncles, or their descendants.
- This pattern continues through more distant relatives.
3. If no one is entitled to inherit, the property goes to the state of Missouri.
The Deceased Ex-Spouse Left a Will but Did Not Mention the Ex-Spouse
If your deceased ex-spouse left a will but did not mention you, you will not inherit any property or assets from their estate.
The will dictates how the deceased’s assets will be distributed, and if you are not named in the will, you have no legal claim to any of their property.
The Deceased Ex-Spouse Left a Will and Mentioned the Ex-Spouse
The timing of when the will was written will make a difference in how it is interpreted and whether the ex-spouse will be entitled to inherit under the will.
If the will was written before the divorce and not updated after the divorce, the ex-spouse might still be a beneficiary or executor.
In some states, the divorce will invalidate the will or affect the ex-spouse’s inheritance rights.
Let me give you an example from Missouri. Under Missouri Statute 474.420, if a testator (the person who made the will) gets divorced after making a will, any provisions in favor of the testator’s former spouse, as well as any appointment of the former spouse as executor, trustee, or guardian, are treated as if the former spouse had predeceased the testator unless the will expressly provides otherwise.
Here is how this would work. Let’s say a man named John wrote a will naming his wife, Jane, as the executor and leaving all his assets to her.
However, John and Jane divorced, and John never updated his will. When John passed away, Jane believed she was entitled to all his assets, as stated in the will.
However, John’s children from a previous marriage contested the will, arguing that since John and Jane were divorced, she should not inherit anything from his estate.
In this scenario, the timing of the will and the divorce would be critical factors in determining how the estate is distributed. The children would receive the inheritance in Missouri, and the ex-wife would receive nothing.
The Ex-Spouse is a Beneficiary of a Trust Created by the Deceased Spouse
If an ex-spouse is named as a beneficiary under a trust created by the deceased spouse, it will depend on the trust’s specific terms and the applicable state law.
Generally, if the trust was created during the marriage and the divorce decree did not specifically address the trust, the ex-spouse may still be entitled to the assets distributed through the trust.
However, some states have laws that automatically revoke any provisions in favor of a former spouse in a revocable trust or a will, similar to the law in Missouri mentioned earlier.
Therefore, it’s important to review the trust documents and consult with an attorney specializing in estate planning or probate law in your state to determine the ex-spouse’s rights and entitlements under the trust.
Some Property is Still Titled Jointly With The Ex-Spouse at The Time of Death
If a property is jointly titled with a right of survivorship, it will automatically pass to the surviving owner upon the other owner’s death, regardless of any provisions in a will or trust.
Therefore, if an ex-spouse dies and you were the joint owner of a property with a right of survivorship, you would become the sole owner of the property.
For example, let’s say you and your ex-spouse owned a house together with a right of survivorship. After the divorce, your ex-spouse continued to live in the house, and you moved out.
If your ex-spouse dies, you would automatically become the sole owner of the house, even if your ex-spouse had a will that left the house to someone else.
It’s important to note that jointly titled property without a right of survivorship would be treated differently and would likely be subject to the probate process, where the deceased owner’s share would be distributed according to their will or state law.
Can an Ex-Spouse Receive Social Security Benefits When Their Ex Dies?
It is possible to receive Social Security benefits based on your ex-spouse’s work record if you meet specific eligibility requirements.
Specifically, you must have been married to your ex-spouse for at least ten years, be at least 62 years old, be unmarried, and not be eligible for a higher benefit based on your own work record.
For example, let’s say you were married to your ex-spouse for 15 years and then divorced. Your ex-spouse has a successful career and earns a significant Social Security benefit.
If you are currently unmarried, over 62, and do not qualify for a higher benefit based on your own work record, you may be eligible to receive a portion of your ex-spouse’s Social Security benefit upon their death.
Can You Recieve Life Insurance When Your Ex-Spouse Dies if You Are Listed as a Beneficiary on the Policy?
If your ex-spouse had a life insurance policy and named you as the beneficiary, you may be entitled to receive the policy’s proceeds upon their death.
However, if your ex-spouse changed the beneficiary designation after your divorce and did not name you as the beneficiary, you would not be entitled to receive the proceeds.
In some cases, divorce agreements or court orders may require one party to maintain a life insurance policy with the other party as the beneficiary to provide financial support for children or other dependents.
If this is the case, and your ex-spouse did not comply with the agreement or order, you may be able to pursue legal action to enforce the terms.
It’s important to review any applicable divorce agreements, court orders, or life insurance policies to determine your rights and entitlements.
Can You Recieve Retirement Account Benefits, Such as an IRA or 401(k), When Your Ex-Spouse Dies?
The answer to this question depends on a few factors, such as the type of retirement account and whether the ex-spouse was named as a beneficiary.
If the ex-spouse was named as a beneficiary of an IRA or 401(k) account, they might be entitled to receive some or all of the account balance upon the account owner’s death, depending on the specific terms of the account and applicable laws.
However, if the divorce decree or other legal documents explicitly state that the ex-spouse is no longer entitled to any retirement benefits, they would not receive any funds from the retirement account.
Generally, reviewing and updating beneficiary designations on retirement accounts after a divorce is a good idea to ensure that the intended beneficiaries are named, and any ex-spouses are removed.
It’s important to note that the rules regarding retirement accounts and divorce can be complex and may vary depending on the state and the specific circumstances involved.
It’s advisable to consult with a financial advisor or attorney for guidance on handling retirement accounts in the event of an ex-spouse’s death.
Final Thoughts
Navigating the legal issues surrounding the death of a former spouse can be overwhelming. However, ex-spouses can be better prepared to manage these complex situations by understanding the legal implications of divorce, the importance of estate planning, and common scenarios and solutions.