In the midst of separation and divorce, spouses often overlook its impact on their estate plan. In nearly every case, divorcing spouses no longer want their assets to pass to their soon-to-be ex-spouse upon their death or for their spouse to continue to have decision-making authority for them upon their incapacity. However, preventing those scenarios usually requires updating your estate planning documents and beneficiary designations, tasks which should be undertaken soon after you separate from your spouse. The summary below of key points under Virginia law will help guide you in reviewing your estate plan and beneficiary designations. Beneficiary Designations. If you divorce after designating your spouse as the beneficiary of a life insurance policy, retirement account, bank account, etc., your former spouse will be treated as if he or she predeceased you. However, there are two critical caveats. The first caveat is that if the third party (insurance company, plan administrator, bank, etc.) nevertheless pays the funds to the former spouse in accordance with the beneficiary designation, the remedy for the person(s) entitled to the proceeds pursuant to the Virginia statute is to make a claim against the former spouse. If you have children, that may pit your children and former spouse against each other in a legal battle. The second caveat is that federal law preempts the Virginia statute. If, for example, the former spouse is named as the beneficiary of a 401K account, thrift savings plan (TSP) or federal employees’ group life insurance (FEGLI) policy, the former spouse may remain legally entitled to the proceeds if the decedent failed to update the beneficiary designations. Updating your beneficiary designations should be one of the first items on your to-do list when you separate from your spouse.  Will Executed Before Divorce. Once the court enters the final decree of divorce, if your former spouse is still named as a beneficiary or fiduciary (e.g., Executor or Trustee) under your will, your former spouse will be treated as having predeceased you.  However, if you named any of your former spouse’s family members as beneficiaries or fiduciaries under your will, those designations will remain intact unless the terms of your will provide otherwise. If you die before the issuance of the final decree of divorce, your will remains effective as written. Therefore, updating your will should also be high on your to-do list when you separate from your spouse. Virginia law prevents you from entirely disinheriting your spouse unless your spouse abandoned the marriage.  However, if you update your will to remove your spouse as a beneficiary and you die before your divorce is final, your spouse will only be entitled to claim an elective share of your estate.  If you have children, your spouse’s elective share claim under Virginia law is one-third (1/3) of the value of your augmented estate or, if you do not have children, your spouse’s elective share claim is one-half (1/2) the value of your augmented estate. Intestate Succession. If you do not have a will and you die prior to the issuance of the final decree of divorce, your spouse will be entitled to receive either: (i) 100% of your probate estate if you have no descendants, or if all of your descendants are also your spouse’s descendants; or (2) one-third (1/3) of your estate if you have descendants that are not also your spouse’s descendants.  If the former applies to you, you can reduce your spouse’s share of your estate by executing a will to exclude your spouse and therefore limit your spouse to the elective share amount discussed in the preceding paragraph. Once your divorce is final, your former spouse will not be entitled to any share of your estate under Virginia’s intestate succession laws. Trust Executed Before Divorce. Unlike the laws with regard to wills, Virginia does not have a statute that automatically terminates a former spouse’s rights as a beneficiary or fiduciary under a trust. You should consult with your estate planning attorney to determine how separation and divorce impacts your trust and the assets titled in the name of your trust. Joint Accounts. If you own accounts titled with your spouse, the form of those accounts should be changed or specifically addressed by the divorce decree. Otherwise, by Virginia statute, upon the court’s entry of the final decree of divorce, any accounts owned with your former spouse as joint tenants with rights of survivorship (JTWROS) or tenants by the entirety (TBE) will simply be converted to tenants in common (TIC), meaning the account remains joint with you and your spouse having equal access to the funds, but the survivorship rights are extinguished.  Powers of Attorney. Under the Virginia Uniform Power of Attorney Act, if you have named your spouse as your agent under your Durable General Power of Attorney, your spouse’s authority to act under the power of attorney is automatically terminated upon filing an action for divorce or separation or an action for child custody.  However, if you named your spouse as your agent to make medical decisions for you under a Medical Power of Attorney, your spouse’s authority is not automatically terminated by statute.  In both instances, it is advisable to formally revoke your spouse’s (or former spouse’s) authority to act under your powers of attorney and to provide your spouse with written notice of the revocation. Consult with your Estate Planning Attorney. Upon separating from your spouse or after your divorce (better late than never), you should consult with your estate planning attorney to ensure your estate plan is updated to conform with your wishes regarding the disposition of your assets upon your death and to update your fiduciary designations. Keep in mind, however, that if you and your spouse engaged the same estate planning attorney while you were married and you are not yet divorced, the Virginia rules regarding professional conduct of attorneys may require your attorney to obtain your spouse’s written consent in order to represent you individually.
 Va. Code § 20-111.1.  Note, however, that for some retirement plans you may be unable to change the beneficiary designation to designate someone other than your spouse without your spouse’s written consent.  Va. Code § 64.2-412.  The exception is covered by Va. Code § 64.2-308, which provides that if a spouse willfully deserts or abandons the other spouse and such desertion or abandonment continues until the death of the other spouse, the party who deserted the deceased spouse shall be barred of all interest in the decedent’s estate by intestate succession, elective share, exempt property, family allowance, and homestead allowance.  Va. Code § 64.2-302.  Va. Code § 64.2-304. Your augmented estate includes the value of nearly all assets you own at the time of your death (except, for example, assets you received by gift or inheritance that you maintained as separate property), including assets that passed to someone other than your spouse by beneficiary designation. See Va. Code § 64.2-305.  Va. Code § 64.2-200 and § 64.2-201. Your probate estate does not include assets titled jointly with another with survivorship rights or assets that have a designated beneficiary.  Va. Code § 6.2-607  Va. Code § 64.2-1608.  If you do not have a Medical Power of Attorney, your spouse’s authority to make medical decisions for you is revoked if a divorce action has been filed. Va. Code § 54.1-2986. However, if you do have a Medical Power of Attorney naming your spouse as your agent, that designation is not automatically revoked by statute as with General Powers of Attorney.
If you have any questions, please contact Christianna L. Niepraschk at:
703.745.1803 | firstname.lastname@example.org.
Christianna L. Niepraschk is an estate planning attorney who focuses her practice in the areas of estate planning and estate/trust administration. She works closely with clients to help them achieve their goals for the distribution of assets during life and after death, including planning for minor children and preserving assets by minimizing estate taxes and shielding assets from creditor claims. Christi also assists clients with the daunting task of estate or trust administration, providing fiduciary services and support at every step, and counseling executors and trustees about their fiduciary duty.