Getting divorced? Should you change your Will?

I am frequently asked by clients if he/she can change a Last Will and Testament during a divorce proceeding. I have had trouble finding any controlling legal authority on this, so I think the decision about whether to do it is up to you.

If you have a Will that gives all your property to your soon to be ex-spouse, you can change your will to leave everything to your children, or to a trust for their benefit. You should change your durable power of attorney and health care proxy. I once had a client who had a stroke in the middle of his divorce proceedings, and his soon to be ex-spouse had the power to make medical decisions! Surely not his intention.

Is there anything illegal or unethical about changing your will during a divorce? In Massachusetts we have an automatic financial restraining order that prevents changing life insurance beneficiaries or IRA beneficiaries during a divorce, but there is no mention of Wills or other estate planning documents in that court rule,  even though it would seem that there’s not much difference between a life insurance policy and a Will. I asked two very thoughtful retired Probate Court judges how they would feel if they found out during a divorce that one party had changed their Will and received two totally different responses. One said that she would be horrified if she learned about it and would think less of the lawyer who advised it and/or the client who did it. She thought that if she learned about it she would have the power to order the party to reinstate the old Will. I talked with another retired judge who took the exact opposite point of view and said that it would be malpractice for me as a lawyer if I did not advise a client to change their Will during a divorce.

Whatever you think of this issue, make sure you consider carefully what you think is best. Don’t just ignore it.


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