If you are going through a divorce, or finished one a while ago, you may have wondered whether your ex could still end up with your house, your savings, or the say over your medical care if something happened to you.
Many people signed their will and their power of attorney years ago, with their spouse named, and have not looked at those papers since.
In Virginia, once your divorce is final, your former spouse is automatically out of your will. They no longer inherit from it, and they no longer serve as your executor. From the day the divorce is filed, they can no longer make decisions for you under your power of attorney or your medical directive.
The natural next question is, then who?
The law reads your will as if your ex had died before you, and it stops there. It does not choose anyone to take their place. If your will named a backup, the house and the savings go to the backup. If it did not, and many wills written during a marriage leave everything to the spouse with no backup, your property passes under Virginia’s default rules instead, which means your children first, and if you have no children, your parents, and then your siblings.
Your will still goes through probate either way. The difference is whether the court is following your choices or the state’s list. If your children are minors, the money goes to them outright, a court has to appoint someone to manage it until they turn 18, and your ex can be the one who asks for that job. The same gap is there for your executor. If you named no backup, the court appoints one.
When there is a gap like that, the people you leave behind are the ones who have to sort it out. Someone has to go to the courthouse and ask to be put in charge. If two of your relatives both think it should be them, or one of them thinks the state’s list got it wrong, that disagreement is settled in court, with lawyers, and the fees come out of what you left.
A will that names who gets what and who is in charge, with a backup for each, gives a family very little to argue about. Leaving the choice to the default rules gives them a lot.
So yes, update your will. Virginia only took your ex out. It did not put anyone in.
The other thing that catches people is the beneficiary form on your 401(k) or other retirement plan at work. Virginia law does not reach that form. If it still names your ex, your ex gets the account, no matter what your will says.
When Does My Ex Come Out of My Estate Plan?
Filing the divorce case ends your spouse’s authority if they are the agent on your durable financial power of attorney, unless the document itself says otherwise (Va. Code § 64.2-1608). Filing does the same to an advance medical directive that names your spouse as the person who will make medical decisions for you (Va. Code § 54.1-2985).
Once the divorce is finalized, Virginia automatically revokes any gift in your will to your former spouse. It also revokes their appointment as your executor, trustee, or guardian, and it treats matching provisions in a revocable living trust the same way (Va. Code § 64.2-412). A separate statute revokes a former spouse’s beneficiary designation on life insurance policies, annuities, and retirement accounts that Virginia law can reach (Va. Code § 20-111.1).
Does Divorce Change My 401(k) Beneficiary?
Federal law governs most employer-sponsored retirement plans, and it overrides Virginia’s revocation statute. The Thrift Savings Plan works the same way for service members. The plan pays whoever is named on its beneficiary form, and no court reviews that name.
The will cannot change that form. Our estate planning attorneys review your beneficiary forms with the rest of your estate plan.
Who Makes My Decisions After I File?
Your spouse’s authority ended when the case was filed. Unless the power of attorney or the directive names a successor agent, a bank or a hospital that needs a signature has nobody to call until you name a new one. If you are going through a divorce and become incapacitated before you sign a new power of attorney and a new medical directive, a court would have to appoint a person to do those jobs.
What If I Am Separated but Not Divorced?
A separation is not a divorce in Virginia. If you have signed a marital settlement agreement but no court has entered a decree, your spouse is still the beneficiary and executor named in your will. If a divorce case has been filed, their authority under your power of attorney and medical directive has ended, but the will does not change while the divorce is pending. If nothing has been filed, every document still stands as written.
If you die before the decree is entered, you are still married, and your spouse may still claim a share of your estate no matter what your will says. A settlement agreement can waive that right, so read yours. Where the agreement is silent, your spouse can claim up to half of the marital-property portion of the estate, and that portion grows with how long you were married (Va. Code §§ 64.2-308.3 and 64.2-308.4).
Do I Need to Rewrite My Will?
Yes. The statutes cancel the gifts and appointments that named your ex-spouse, but the will your family would file still has their name on it, so an estate plan after divorce needs a new will.
If you later remarry the same person, Virginia revives those cancelled provisions (Va. Code § 64.2-412). If you marry someone else, you need a new will that names the new spouse, the backups, and a guardian for any minor child.
What If My Divorce Was Years Ago?
The beneficiary form on a 401(k) you opened during the marriage can still name your former spouse. The whole balance, including everything you have put in since the divorce, goes to the person on that form until you change it. Virginia’s statute does not reach most workplace plans, so the decree alone does not change the beneficiary form. The decree must include a notice, in bold, that death-benefit designations do not all change automatically (Va. Code § 20-111.1).
A life insurance policy can also still pay your former spouse. Virginia does revoke a former spouse as beneficiary once the divorce is final, but an insurance company that pays the named person before it has written notice of the divorce is not liable for paying the wrong one.
What Do I Update First?
- The beneficiary forms. Employer retirement plans first, then life insurance policies, annuities, and any account with a payable-on-death designation. Workplace plans are the likeliest to still name your former spouse, because federal law overrides Virginia’s revocation statute.
- Your powers of attorney and your advance medical directive. Filing ended your spouse’s authority under those documents, and unless each one names a successor, nobody else can act. Both need a new agent.
- Your will. A new one that names the beneficiaries, the executor, and a backup for each.
- Any trust. A revocable living trust can be amended. You usually cannot amend an irrevocable trust. Either way, check the titling of the assets you moved into it.
- A guardian nomination, if you have minor children. A court decides guardianship, and you name your choice in your will.
We answered several other questions that come up years after a divorce in our post on the questions that linger after a Virginia divorce.
Talk With Our Estate Planning Attorneys
Our estate planning attorneys in Stafford and Spotsylvania draft wills, revocable living trusts, advance medical directives, and durable financial powers of attorney. They will review your existing will, advise you on which provisions are still valid, and update the ones that are not. We also prepare medical release forms, ensuring the people you trust can access your medical information. We offer flat-rate pricing for all estate planning, provided to you before any drafting begins.
If your divorce is ongoing, our attorneys can update your estate plan while the case is pending and review your beneficiary designations before the final decree is entered (including in military divorces). Even if your divorce was finalized a decade ago, we provide the same comprehensive review.
Contact Rinehart Bryant to get started. We serve families from our Stafford and Spotsylvania offices and throughout the Fredericksburg area.
