Estate planning after divorce: the will still names your ex

If you don’t do anything else after your divorce, do this. Your estate plan was written assuming you were married. Most of its provisions probably named your ex — as executor, as primary beneficiary, as guardian for the kids in your absence. The divorce doesn’t undo all of it automatically. Some pieces update by operation of law in most states; many don’t. The pieces that don’t can produce consequences you’d hate.

What automatically updates (in most states)

Most states have statutes that void provisions naming an ex-spouse in:

• Wills. A will naming your ex as executor or beneficiary is generally read as if the ex predeceased you, after divorce.
• Powers of attorney. Financial and healthcare POAs naming the ex are usually revoked by divorce.
• Some beneficiary designations. A few states extend the "as-if-predeceased" rule to non-probate transfers like life insurance.

The catch: "in most states" and "some" do a lot of work. The default rules vary, and even where they exist, they don’t always apply to every instrument. Don’t rely on them.

What doesn’t update — and where the landmines live

The most common surprise: federal-law instruments override state-law revocation.

A 401(k) governed by ERISA continues to name your ex even after divorce, unless and until you submit a new beneficiary form. The Supreme Court has confirmed this twice — federal preemption means the named beneficiary inherits, full stop. Life insurance follows similar rules in many employer-sponsored cases.

In practice: a person dies a year after divorce, never updated the 401(k) beneficiary form, and the entire retirement account goes to the ex. The decree said it shouldn’t. State law said it shouldn’t. The plan administrator pays the named beneficiary anyway. Sorting it out is a multi-year, expensive lawsuit — often unsuccessful.

The same risk applies to:

• Life insurance policies, especially employer-sponsored
• IRAs
• Pension survivor benefits
• Transfer-on-death deeds and accounts
• Payable-on-death bank accounts
• HSAs
• 529 college savings accounts where the ex is a successor owner

The post-decree checklist

In rough order of urgency:

1. Update beneficiary designations on every retirement account and life insurance policy. The single most important step. Each institution has its own form, available from HR (employer plans) or the plan administrator.

2. Update beneficiary designations on bank and brokerage accounts. Transfer-on-death and payable-on-death designations move outside probate.

3. Rewrite your will. Even where state-law revocation kicks in, rewriting is cleaner. Name your executor, beneficiaries, guardians, and alternates explicitly.

4. Rewrite your powers of attorney. Financial POA (someone who can act on your finances if you can’t) and healthcare POA / advance directive (someone who can make medical decisions). Pick people who aren’t your ex and who actually accept the role.

5. Update guardianship designations for minor children. Your will should name a guardian if both parents are gone. (This only takes effect if the surviving parent has also died or been found unfit.)

6. Review any revocable trusts. Trusts set up during the marriage often name the ex as a trustee or beneficiary. The decree usually addresses this, but the trust document itself has to be amended.

7. Confirm what the decree did with joint accounts and joint property. Any account still bearing both names is a problem. Get them retitled or closed.

What to do in the first month

If you can’t immediately get to all of this, prioritize.

• Beneficiary forms on retirement accounts and life insurance. Today. These are the biggest landmines.
• Healthcare power of attorney. Within a week. The document that controls medical decisions if something happens.
• Financial power of attorney. Same urgency.
• Will. Within a few months. State-law revocation will catch the most obvious issues, but a fresh will is much cleaner.

When to hire someone

Estate planning is one of the areas where DIY templates work for simple cases and fail for complex ones.

DIY-friendly:

• Single, no minor kids, modest assets
• Single will, single set of beneficiary designations, single state of residence
• No business interests, no trusts, no real estate other than a primary residence

Hire an estate-planning attorney when:

• You have minor children (guardianship and trust planning gets nuanced)
• You own real estate in more than one state
• You have a business interest
• You have significant retirement assets you want to direct strategically
• You’re in a blended family

A simple post-divorce estate-plan package runs $500–$2,000. A complex one with trusts and business interests runs $2,500–$10,000. For most people, this is the highest-ROI legal spending after the divorce itself.

The pattern to avoid

The worst outcomes come from nothing-getting-done for years. The person dies in an accident or sudden illness, and a decade-old estate plan rooted in a marriage that’s been over for years runs the show. The ex inherits. The wrong person is named guardian for the kids. The estate gets tied up in probate while the actual heirs and the ex fight over what the decedent "must have wanted."

Updating an estate plan post-divorce is not glamorous, not urgent in the way court appearances are, and almost universally neglected. It’s also one of the few projects that produces meaningful protection for a few hours of work.