What Happens to Your Will When Love is Lost?


For many of our clients, a common plan among married clients is to leave all of their property to their spouse outright.  While that it typically not a bad option for a happy couple with a solid marriage, it is not usually the preferred disposition after the happy couple divorces.

After a major life event such a divorce, it is important to update your estate plan including your Last Will and Testament, Power of Attorney, and Georgia Advance Health Care Directive. However, many people forget to make those changes in a timely manner. Therefore, the question is sometimes asked about what happens to an ex-spouse’s interest in an estate after the Final Judgment and Decree is granted.

Thankfully, Georgia law has a specific statute to address the situation. Pursuant to O.C.G.A.  § 53-3-49,  the provisions of the deceased’s ex-spouse’s will intended to benefit the former spouse are given effect as if the former spouse died prior to the death of the deceased person. Any bequests to the former spouse would, in effect, skip the spouse and pass to the next named beneficiaries.

Specifically, O.C.G.A. § 53-3-49 provides as follows:

All provisions of a will made prior to a testator’s final divorce or the annulment of the testator’s marriage in which no provision is made in contemplation of such event shall take effect as if the former spouse had predeceased the testator, and the provisions of Code Section 53-4-64 shall not apply with respect to the descendants of the former spouse who are not also descendants of the testator. If the testator remarries the former spouse and the testator has not revoked or amended the will that was made prior to the divorce or annulment, the remarriage shall not result in the revocation of the will and the provisions of the will that were revoked solely due to the application of this Code section shall be revived.

Similarly, if the deceased person’s will names the former spouse as Executor as they typically would, Georgia law also provides that the applicable provision would be considered ineffective and the former spouse would not be permitted to serve. Instead, the next named executor would be permitted to probate the will.

In the event there is a remarriage of ex-spouses to each other, the provisions of O.C.G.A. § 53-3-49 would not apply. Similarly if the will is either executed after the date of divorce and/or a new Codicil is executed, then these special provisions would not apply.

It is important to remember that O.C.G.A. § 53-3-49 does not apply to non-probate assets such as life insurance, bank accounts with right of survivorship, and other assets with specified beneficiaries such as a 401(k).

As you can expect, the adverse consequences of properly updating your estate plan after a divorce can be serious.  If you or a loved one needs to discuss the possibility of executing new estate planning documents due to a divorce, the estate planning lawyers at Durden & Mills, PC can assist you. Call us at (706) 543-4708 for a free consultation.