What a divorce does to your will, state by state

Texas, Estates Code 123.001(b). 'If, after the testator makes a will, the testator's marriage is dissolved by divorce, annulment, or a declaration that the marriage is void, unless the will expressly provides otherwise: (1) all provisions in the will, including all fiduciary appointments, shall be read as if the former spouse and each relative of the former spouse who is not a relative of the testator had failed to survive the testator.' Subsection (b)(2) applies the same reading to gifts into an irrevocable trust¹.

Florida, Statutes 732.507(2). 'Any provision of a will that affects the testator's spouse is void upon dissolution of the marriage of the testator and the spouse, whether the marriage occurred before or after the execution of such will. Upon dissolution of marriage, the will shall be construed as if the spouse died at the time of the dissolution of marriage.' It does not apply to a will 'Executed by the testator after the dissolution of the marriage', where there is 'a specific intention to the contrary stated in the will', or where 'the dissolution of marriage judgment expressly provides otherwise'. Subsection (3) applies it to people who die on or after June 29, 2021².

California, Probate Code 6122(a). 'Unless the will expressly provides otherwise, if after executing a will the testator's marriage is dissolved or annulled, the dissolution or annulment revokes all of the following: (1) Any disposition or appointment of property made by the will to the former spouse. (2) Any provision of the will conferring a general or special power of appointment on the former spouse. (3) Any provision of the will nominating the former spouse as executor, trustee, conservator, or guardian.' Subdivision (b) revives them on 'the testator's remarriage to the former spouse'³.

New York, EPTL 5-1.4(a). 'Except as provided by the express terms of a governing instrument, a divorce ... or annulment of a marriage revokes any revocable (1) disposition or appointment of property made by a divorced individual to, or for the benefit of, the former spouse, including, but not limited to, a disposition or appointment by will, by security registration in beneficiary form (TOD), by beneficiary designation in a life insurance policy or (to the extent permitted by law) in a pension or retirement benefits plan, or by revocable trust', along with powers of appointment and any nomination of the former spouse 'as a personal representative, executor, trustee, conservator, guardian, agent, or attorney-in-fact'⁴.

Who takes the gift instead. Each statute reads the will as if your former spouse had died first. If the will names a backup beneficiary, that reading points to that person; if it names none, what happens depends on the rest of the will and your state's law. Either way it is not a choice you made after the divorce.

Who serves. The former spouse is out as executor, trustee or guardian nominee in all four states¹²³⁴. If no alternate is named, the will no longer names anyone for that role. In Texas the same applies to your former in-laws: the will is read as if each relative of the former spouse who is not your relative had died first, which can remove a stepchild or an in-law you wanted to keep¹.

The timing. Each statute acts on a marriage that has been dissolved: Florida says 'Dissolution of marriage occurs at the time the decedent's marriage is judicially dissolved or declared invalid by court order', and California says a legal separation that does not end the marriage 'is not a dissolution for purposes of this section'²³. How your will reads while a divorce is still pending is a question for a lawyer licensed in your state.

Accounts outside the will. Florida voids pre-divorce designations of a former spouse on life insurance, employee benefit plans, IRAs, payable-on-death and transfer-on-death accounts, except 'To the extent that controlling federal law provides otherwise'⁶. California makes a nonprobate transfer to a former spouse fail, but its definition leaves out life insurance policies⁷. Texas Estates Code 123.052 handles trusts and sends life insurance and retirement plans to Family Code 9.301 and 9.302⁵. Changing the beneficiary form itself removes the question in every state.

The Florida Bar lists divorce among the changes that 'may raise questions as to the adequacy of your will'⁸. The statute is a backstop, not a plan.