Is Your Will Valid If You Terminate Your Marriage?

Are you getting divorced, obtaining a dissolution, or annulling your marriage? If so, then you should consider reevaluating your estate planning documents as soon as possible.

According to Section 2107.33(D) of the Ohio Revised Code, once a person has signed a will, if he or she is divorced, obtains dissolution, obtains an annulment, or separates from his or her spouse, any provisions in the will granting power or appointment of fiduciary to the former spouse will be revoked unless the will specifically states otherwise.  For example, if Mary's will appoints her husband John as executor of her estate and then they get divorced, John's appointment of executor becomes null and void, and the next person in named in the will becomes executor. 

Additionally, according to Section 2107.33(E) of the Ohio Revised Code, a former spouse will not receive any property owned solely by the decedent through a distribution in a will revoked based on termination of marriage. The property will be distributed as if the former spouse did not survive the decedent.  For example, if Mary's will gives all of her property to her husband John and then to her sister Beth if John doesn't survive Mary, but then Mary and John get divorced, all of Mary's property would go to Beth as if John died before Mary. However, if the property is owned by both parties, the former spouse has the ability to attempt to obtain the deceased spouse's portion of the property.

If a couple remarries, the will's powers and distributions remain as if the couple never terminated the marriage.  A different law applies to beneficiary designations of payable on death assets, so a re-marriage will require new beneficiary designations.
Further, if a former spouse marries a new spouse, the new spouse will have rights known as statutory marital rights defined in Section 2106 of the Ohio Revised Code that allow the new spouse to obtain certain property before any beneficiaries identified in the will obtain their distributions. (This is a compelling reason to get a Prenup!)

While Ohio law automatically enforces the revocations of power and distribution, it is much easier and efficient to update your estate plan documents to reflect your true intentions, whether or not your intentions include your former spouse.