Under Georgia law / probate code, in regard to wills (Last Wills and Testaments) O.C.G.A. § 53-4-49: Any will provisions leaving property to a former spouse are automatically revoked when the final divorce decree is issued and the property is passed to an alternate beneficiary.
The Need to Update Your Will and Trust
However, this law does not automatically carry over to other financial and estate planning arrangements you may have. It is important to update all of your estate planning and financial documents following a divorce if you and your ex-spouse shared a life insurance policy, retirement account, investment, property, joint trust or any other joint or beneficiary accounts. This is because your ex-spouse will still remain a beneficiary of these assets and insurance policies until you remove their name from them. The divorce decree should control in most instances, but if certain assets are not specifically addressed, your ex-spouse could receive the assets or at the minimum, there would be significant delays and confusion in the correct person receiving the assets.
Commingling Non-Marital Property
In anticipation of a divorce, you should be very careful when commingling separate property, as this could lead to your property being considered marital property in court. It is possible to commingle separate property and turn it into marital property in several circumstances. Examples include depositing separate property into a joint bank account and using it to buy joint property or investing separate property into your spouse’s (or a joint) business. Once property is labeled as ‘marital,’ it is subject to Georgia’s equitable division law.
Uncontested Divorce Provisions
If entering into an uncontested divorce, it is best for the parties to enter into an agreement that states property acquired during the marriage by one spouse by gift, inheritance, bequest or devise remains the separate property of the recipient spouse and is not subject to equitable division. And that each party shall retain possession and ownership of any property acquired by gift, inheritance, bequest or devise, free and clear of any claim or rights of the other party. While this does sound like legalese, it will satisfy almost any scenario involving separate property obtained by inheritance. See Armour v. Holcombe, 288 Ga. 50, 51 (2010), citing Avera v. Avera, 268 Ga. 4 (1997).
If you are facing divorce or need to update your will or trust, call us at 770-609-1247 to confidentially speak to one of our experienced divorce, family law, will and trust attorneys. We can help the majority of people even in complex cases.
Updated: 2017-05-23
