When an Ex Can Take It All: The Effect—and Non-Effect—of Revocation on a Will Post-Divorce

Molly Brimmer

The culture of marriage is changing. Almost fifty percent of present-day marriages will end in divorce. Simultaneously, there has been an increase in the number of individuals choosing to defer marriage. Often, the decision to postpone marriage is triggered by a desire to be more financially stable before tying the knot. Although disheartening, the current statutory scheme regarding wills post-divorce, coupled with an individual's increased likelihood of divorce, often results with the fruitful savings of these financially savvy individuals being left in the most unintended of hands.

This prudent estate planning nearly always includes a will—a legal tool utilized as the last remaining “voice of the testator.” When probating a will, a court's primary responsibility is to properly construe and apply testator intent. Because the testator is no longer present to speak about his or her wishes and elaborate on this intent, the law requires that the probate court adhere stringently to the explicit language stated in the will. Given the frequency with which individuals fail to update their wills, however, such a strict adherence to the text can prove disastrous when a testator fails to change his or her estate plan. This situation can leave a testator's current loved ones with nothing and an ex-spouse—whom the testator presumably no longer wants to receive a bequest or be named executor under the will—with a windfall.

When finalizing a divorce, a couple's first priorities usually include the emotional and time-consuming issues of asset division, child custody, child support, and alimony. Changing their individual estate plans to reflect their new marital status is typically not at the forefront of their concerns. To make matters more difficult, the inheritance consequences of an outdated will do not become apparent until after the death of one of the former spouses. This leaves the decedent's family and current spouse, if there is one, with many unanswered questions, including whether the decedent intended for his or her former spouse to take the bequest included in the original will.

The Uniform Probate Code's (“UPC”) revocation upon divorce statute is a statutory response to this common failure to execute a new will after divorce. The statute provides an express rule to clarify these unanswered questions and to resolve the problem of the unintended former spouse beneficiary. This Comment will illustrate the complications that result when a state fails to fully adopt the clear bright-line standard set forth in the UPC's revocation upon divorce statute, Section 2-804. A recent Maryland Court of Appeals case, Nichols v. Suiter, provides an instructive example of the complications that can quickly arise without such a statute. State legislatures that have not already done so should universally adopt the statutory provisions set forth in the UPC's revocation upon divorce statute, Section 2-804. This would promote the efficient resolution of probate administration, protect the common testator who fails to change his will upon divorce, and better effectuate the new intentions of the divorced testator.