Does Divorce Invalidate A Will In Ohio?

No, divorce does not invalidate a will in Ohio, but it does have an impact on provisions in your will naming your spouse.  Specifically, a divorce, annulment, separation, or entry into a separation agreement revokes:

  1. any disposition or appointment of property made by the will to the former spouse or to a trust with powers created by or available to the former spouse;
  2. any provision in the will conferring a general or special power of appointment on the former spouse;
  3. any nomination in the will of the former spouse as executor, trustee, or guardian.

 

If the will specifically provides that a divorce will not have the effect of revoking the dispositions and appointments set forth above, then the terms of the will control.

The law regarding the effect of divorce on an Ohio will can be found in Section 2107.33(B) of the Ohio Revised Code, the statute governing revocation of wills in Ohio, which states:

If after executing a will, a testator is divorced, obtains a dissolution of marriage, has the testator’s marriage annulled, or, upon actual separation from the testator’s spouse, enters into a separation agreement pursuant to which the parties intend to fully and finally settle their prospective property rights in the property of the other, whether by expected inheritance or otherwise, any disposition or appointment of property made by the will to the former spouse or to a trust with powers created by or available to the former spouse, any provision in the will conferring a general or special power of appointment on the former spouse, and any nomination in the will of the former spouse as executor, trustee, or guardian shall be revoked unless the will expressly provides otherwise.

What Happens When Provisions In A Will Regarding A Former Spouse Are Revoked By Operation of Law?

If you do not update your estate planning after a divorce, and Ohio law operates to invalidate and revoke provisions of your will concerning your former spouse, then your will is interpreted as if your former spouse predeceased you.  Therefore, if Adam and Barbara divorce, and Barbara was nominated to serve as executor in Adam’s will, Barbara will be treated as if she had died before Adam and the person named in Adam’s will to serve as successor executor will have preference to serve.

If provisions in favor of your former spouse are revoked upon divorce solely by operation of Ohio law, then they shall be deemed to be revived by the testator’s remarriage with the former spouse or upon the termination of a separation agreement executed by them.   This law can be found in section 2107.33(C) of the Ohio Revised Code.

What Happens To Pay On Death Designations Upon Divorce In Ohio?

Just as a divorce can invalidate and revoke provisions in favor of a spouse in your will, Ohio law also contains a provision revoking the designation of a spouse as a beneficiary upon divorce.  The term “beneficiary” means:

a beneficiary of a life insurance policy, an annuity, a payable on death account, an individual retirement plan, an employer death benefit plan, or another right to death benefits arising under a contract.

Under Ohio Revised Code section 5815.33, unless the beneficiary designation or the decree granting the divorce, dissolution of marriage, or annulment specifically provides otherwise, if a spouse designates the other spouse as beneficiary, and then the spouses divorce, dissolve, or annul the marriage, then the other spouse shall be deemed to have predeceased the spouse who made the designation or on whose behalf the designation was made, and the designation of the other spouse is revoked as a result of the divorce, dissolution, or annulment.

What Happens To Authority Under A Power Of Attorney Upon Divorce In Ohio?

Powers of attorney designating a spouse as agent are affected at the moment of filing for divorce in Ohio.  Authority granted under a power of attorney to a spouse terminates when an action is filed for the divorce, dissolution, or annulment of the agent’s marriage to the principal or their legal separation, unless the power of attorney otherwise provides.

This termination of authority under a power of attorney under Ohio law upon filing of a divorce action is to prevent one party from taking actions as agent for the other that disrupt the status quo during divorce proceedings.  There is no provision under Ohio law that appoints another person as power of attorney when the authority of your spouse is terminated.  This means that if Ohio law will invalidate a power of attorney in favor of a spouse when divorce is filed, unless a new power of attorney is executed, you will be left with no one to serve as power of attorney.

This law can be found at Ohio Revised Code 1337.30(B)(3).

Estate planning after a divorce, dissolution, or annulment will be the best way to make sure that you, not Ohio law, controls the disposition of your assets.

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