Divorce and Your Last Will and Testament in Wisconsin

November 13, 2017

In Wisconsin, divorce can significantly modify your estate planning documents with unintended results. Filing for divorce and the conclusion of a divorce alters estate planning documents and beneficiary designations, in different ways, without any action by the person getting divorced.

Upon the filing for divorce and on the conclusion of divorce proceedings, Wisconsin law will update your documents and beneficiary designations for you, often in ways that you don’t want or didn’t anticipate. In this article, our estate planning attorneys discuss why you should update your Last WillA written document that sets forth and names the personal representative who will be in charge of overseeing the probate process and names the specific bequest and residual beneficiaries of property who are to receive and inherit assets and property through probate. A Will does not avoid probate, and must be properly drafted and executed to be legal. A Will can also avoid the use of a surety bond in many instances and can help utilize an “informal” Wisconsin probate process if it has the proper clauses and attestation clause. and Testament upon divorce.

This is the second part of a three-series: our first article covered the effects of divorce on Financial Durable Power of Attorney and Power of Attorney for Health Care documents.

Wisconsin Law Will Update Your Last Will and Testament If You Don’t

In Wisconsin, the legislature passed a law to update certain aspects of a Last Will and Testament, if a divorcee doesn’t do so on his or her own.

In consultation with your divorce attorney, we may update your Last Will and Testament during the divorce process or upon the conclusion of a divorce.

Failure to proactively amend or update a Last Will and Testament allows Wisconsin statute 854.15 to make changes to your will upon the conclusion of a divorce.

Divorce May Automatically Change Dispositive Provisions

In Wisconsin, the conclusion of a divorce settlement causes the revocation of all dispositive provisions in a Last Will and Testament, in favor of a former spouse. As such, if your Last Will and Testament leaves property or other assets to a former spouse (after the divorce), the former spouse will normally be removed as a beneficiary from your Last Will and Testament.

Generally speaking, most of our clients want to prevent former spouses from inheriting property and assets. However, that is not always the case. Unless those clients update their Last Will and Testament to allow their former spouses to receive that property, Wisconsin law will prevent that from happening.

Divorce Will Not Always Remove a Former Spouse as a Beneficiary from a Last Will and Testament

Wisconsin statute 854.15 contains numerous exceptions to the general concept that a former spouse will be removed as a beneficiary from a preexisting Last Will and Testament upon divorce.

1. Agreement or Judicial Order

If the Last Will and Testament expressly states that the spouse should not be removed in the event of divorce or if there is an agreement, contract of judicial order stating that the former spouse should not be removed, then the former spouse is likely not removed in spite of the divorce. In some circumstances, a judge may order that a spouse not be removed as to certain property or even generally, from a Last Will and Testament.

2. Divorce Subsequently Invalidated or Nullified

If a divorce is later invalidated and nullified, the former spouse would no longer be considered removed from the Last Will and Testament.

3. The “Intent” Exception

The most concerning exception to the general rule that a former spouse is removed from a Last Will and Testament upon divorce, is the “intent” exception.  Wisconsin law provides that a former spouse is not removed if the creator of the Last Will and Testament “had an intent contrary to” section 854.15.

4. “Extrinsic” Evidence

In addition, so called “extrinsic” evidence can be used to prove that the Last Will and Testament creator intended to continue to include a former spouse in the document even after divorce.

This ability of a former spouse to argue, after the Last Will and Testament creator’s death, that the Last Will and Testament creator still intended to include a former spouse is legally very problematic. As Wisconsin has abolished the “dead man’s statute,” the former spouse could use and allege conversations and promises made orally, as evidence that the former spouse was intended to be included in the Last Will and Testament.

Given these exceptions, we strongly recommend that our clients create a new Last Will and Testament upon divorce.

Experienced in Last Will and Testaments at Divorce

At Wokwicz Law Offices, our lawyers have handled hundreds of estate plans following divorce. We know how to update these important legal documents to avoid Wisconsin law from unintentionally changing your Last Will and Testament and estate plan against your desires. We can work with you to avoid future family disputes stemming from unexpected changes to your estate planning documents. Contact our office to schedule an appointment.