Attorney
When you said “‘Til death do us part,” you probably weren’t thinking about end-of-life decision-making and inheritances. And updating your will probably isn’t the number one item on your to-do list if you are getting divorced. But failing to update your estate plan after you get divorced (and maybe while your divorce is pending) can cause major headaches down the line.
Since our Albuquerque-based firm is focused on helping clients move forward and get the most out of their post-divorce life, the Matteucci Family Law team always encourages our clients to consider creating or updating their estate planning documents post-divorce. This brief blog post explains why, but it should only be considered an overview of this important topic.
Divorce Changes More Than Your Relationship Status
Thanks to New Mexico’s community property laws, most couples divide the value of their assets 50/50 in order to get divorced, Most people understand that their relationship status isn’t the only thing that changes when their marriage ends. While your divorce decree may significantly change your finances, it doesn’t automatically alter other legal documents you may have executed.
Your estate plan — your will, any trusts, and the beneficiary designations on any life insurance policies or bank and investment accounts — still reflect the world as it existed when you created them. For many couples in the Albuquerque area, that means their ex-spouse is still listed as executor, trustee, or primary beneficiary.
However, just because an ex is listed on those documents does not mean they will for sure serve in those roles. New Mexico law includes a legal backstop that can prevent an ex from playing a role in end-of-life decisions or inheriting assets.
What New Mexico’s “Revocation on Divorce” Statute Does and Doesn’t Do
New Mexico and many other states have adopted a so-called “revocation on divorce” statute (ours is found at NM Stat § 45-2-804) which automatically negates the provisions in a will or trust that favors a former spouse once a divorce is final. It also applies to appointments of an ex-spouse as a personal representative, executor, trustee, conservator, agent, or guardian.
The law is intended to prevent exs and their family members from getting a windfall inheritance just because the deceased person did not update their estate plan.
But the statute doesn’t cover everything:
- Trusts created during marriage — especially those holding real estate, business interests, or other high-value assets — may include their own provisions that say the revocation on divorce statute doesn’t apply to them.
- Beneficiary designations on life insurance policies, retirement accounts, and payable-on-death bank accounts aren’t always affected. Some institutions contract around the law by saying the statute doesn’t apply, and whoever is listed as the beneficiary is the beneficiary, even if the parties get divorced.
- The statute was drafted to address issues that arise in probate. This means documents that cover end-of-life care — like power of attorney and health-care directives — should really be updated post-divorce so there is no confusion if they are needed.
The statute also cannot guarantee your estate plan will work how you want it to just by cutting your ex and his or her family members out of it. It’s a safety net, not a substitute for careful planning.
What Parts of Your Estate Plan Need Updated Post-Divorce?
Rather than relying on a state law to cut your ex out of your will and other legal documents, it is a good idea to fully re-do your entire estate plan. Here’s where to start:
- Update your will and trusts. Revisit who inherits what, who manages your estate, and how any trusts should function now that your family structure has changed.
- Review beneficiary designations. Retirement accounts, annuities, and life insurance policies pass outside your will. Confirm that every designation matches your current intentions.
- Replace powers of attorney and health-care proxies. Appoint someone you trust to handle these roles—perhaps a sibling, adult child, or close friend.
- Address guardianship and support for minor children. Your estate plan should coordinate with your parenting plan, ensuring continuity and financial security.
- Reevaluate tax and business succession planning. Divorce can shift ownership interests, cash flow, and liquidity needs. A fresh look at your estate’s structure can prevent unintended tax burdens later.
Failing to align your estate plan with your new family dynamic and vision for the future can create gaps that courts or successors must scramble to fill, often at great cost.
Serving Families with Dignity & Compassion
Updating your estate plan should be on your to-do list if you are getting divorced and moving on to the next chapter of your life. While New Mexico state law will assume you want your ex cut out of your will, it’s best if you take the time to fully update all of your estate planning documents.
If you have questions or concerns about what impact divorce can have on your estate plan, Attorney Bob Matteucci is here for you. Please contact Matteucci Family Law to set up a meeting.