While a divorce ends the marriage, it doesn’t end the legal entanglements—nor does remarriage necessarily grant all the rights you might assume. As a law professor who teaches family law and estate planning, I remind my students that during both the challenges of divorce and the joys of remarriage, people need to keep track of some pretty nonromantic realities.
There are many (admittedly boring) legal actions that you should think about adding to your to-do list, in divorce and in remarriage. Will you cancel all joint accounts in divorce, or maintain them? Merge accounts in remarriage? In the stress of divorce and the gauzy joy of remarrying, these kinds of details can seem irrelevant at best, annoying at worst.
But our laws are there to help protect us, and those we love. Your best bet is to learn how to use our legal protections to help ensure the best future for you and your family.
Here are three surprising steps you may still need to take:
1. Update your will after your divorce finalizes.
It isn’t necessary true that ending a marriage means you want to end your financial protection of your once-wed—particularly if you have children together. But even if you want your will to stay the same, you need to rewrite it after divorce. Why?
In most states, a divorce automatically changes a written will, specifically voiding any intention to leave property to a former-spouse. Even if your will says that you want to leave your home to your now-ex-spouse, for example, that might not happen unless you write it again after your divorce finalizes.
It’s surprising that even many legal professionals don’t realize that if you want your ex to benefit when you die, you have to write a new will to this effect after you divorce. Arkansas judge Donald Ray Langston, for example, had a great relationship with his ex-wife, and a will leaving his property to her. They spent a lot of time together after their divorce, had keys to each other’s houses, and talked every day. He even paid many of her bills.
But when he died five years after their divorce, his ex-wife received nothing under the will because he’d drafted his final will six weeks before the divorce decree.
In some states, the law might also revoke gifts you intend to leave to relatives of your ex-spouse, including a former stepchild. These need to be re-added to your new will, too. "The biggest challenge is, how does anyone reconcile preserving assets for children from a prior marriage while taking care of one's commitment to a new spouse?" as certified financial planner Mark LaSpisa, recently told CNBC.
Note that interpretation of the will depends on the state of the deceased, not the state of the person named in the will (although that rule is slightly different when it comes to real property, like a house). See Nolo’s estate planning page for insight.
If you don’t have a will, now is a good time to get one. If you die without a valid will, the results can feel unfair to those left behind.
If you remarry, and want your new spouse to get all of your property, then write that, too.
2. Change insurance forms and retirement accounts to reflect your new desires.
Remember those beneficiary designations you made when you bought a life insurance policy and opened a retirement account? Many states have laws that automatically delete your ex-spouse’s name on retirement accounts and/or life insurance policies. Check these policies after your divorce; if you want your ex to benefit, you may have to add this back in, and check with a legal professional in your state to make sure he's covered.
If you remarry, and you want your new spouse to receive your life insurance proceeds, you may have to specify this, too. As University of Maryland School of Law professor Paula Monopoli points out, "Some retirement plans and insurance policies are covered by federal law, which requires that the money be given to the named ex-spouse, even if that's not what state law provides." The same is true with leaving money to children—either those from a new marriage or a previous one—you may have to add their names.
Your best bet is to make sure all your accounts reflect, in writing, your current intentions.
3. Formally grant legal parenting rights to a new partner, if you want to.
If you think your new spouse has any legal authority over your children, you need to think again. Your new spouse may love and want to do everything for your kids, but the law generally doesn’t recognize this formally. In other words, the fact that you’ve remarried doesn’t mean your children have a new, legal guardian in your new spouse.
In many remarriages and blended families, the biological parents and new partners work well together, giving the kids the benefit of three or four responsible adults. Still, a stepparent is usually considered a “legal stranger,” unless the stepparent adopts the child. Nor do you have any legal authority over your new spouse’s children.
If you want your new partner to be able to pick up your kids from school, make medical decisions, or have medical power of attorney, find out if there are any forms to fill out to grant these rights.
You might even want to ask a lawyer about the specific rules in your state, or look them up online.
The information in this blog post is provided for general purposes only. It may not reflect the current law in your county and doesn’t replace legal advice. This post is not intended to be a substitute for legal counsel. No attorney-client relationship has been established by reading the post.
Naomi Cahn is the Harold H. Greene Professor of Law at The George Washington University Law School. She is the co-author, along with law professor June Carbone, of Marriage Markets: How Inequality Is Remaking the American Family (Oxford University Press, 2014) and Red Families v. Blue Families: Legal Polarization and the Creation of Culture (Oxford University Press, 2010) as well as the leading family law textbook Contemporary Family Law. Her work has been featured in The New York Times, The Washington Post, The Christian Science Monitor and The New Yorker. Find more at law.gwu.edu.