Most married people who have prepared an estate plan leave most of their assets to their spouse if their spouse survives them and to their children or other descendants if they survive their spouse. When a Minnesota resident gets divorced, one question that often comes up is the effect of the divorce on their estate plan.
Under Minnesota law, a divorce automatically revokes any provision in a will that leaves property to the ex-spouse. The will is given effect as if the ex-spouse died upon the entry of the divorce decree; the assets pass to the beneficiaries designated to receive them if the ex-spouse had not survived the person who prepared the will. Divorce also revokes any appointment of the ex-spouse as a personal representative, also known as an executor, or as a trustee or guardian. These automatic revocations can be overridden, however, if a prenuptial or postnuptial agreement expressly states they will not apply.
Many people with estate plans in Minnesota have opted to prepare a revocable or living trust instead of a will. Minnesota’s trust law contains similar revocation provisions to those governing wills: a divorce automatically revokes any part of a trust created by one spouse which provides for payment of income or principal from the trust to an ex-spouse, or provides them with the beneficial enjoyment of any trust assets. It is important to keep in mind that this automatic revocation generally applies only to revocable trusts; if a trust is irrevocable it can be extremely difficult or impossible to revoke any of its terms.
Despite these automatic revocation laws, a Minnesota spouse going through a divorce will usually still want to revise their estate plan, particularly any provisions related to minor children. It is also important to understand the effect of divorce on one’s own estate plan, on a spouse’s estate plan, and on any assets held by a trust, when negotiating the divorce property settlement.