Thinking of getting divorced? If you are, you’re not alone. In 2025, The Centers for Disease Control and Prevention (CDC) estimates that the probability of a first marriage for a woman aged 15-44 ending in divorce within the first 10 years is approximately 36%. How will getting a divorce effect your estate plans though?
Can my ex still serve as my fiduciary?
Arizona law revokes any revocable nomination in a governing instrument that nominates a divorced person’s former spouse or relative to serve in a fiduciary capacity unless as provided by the express terms of a governing instrument, contract or a court order.
This boils down to: If you named your spouse as an agent under a power of attorney, a personal representative under a will or a trustee under a trust, they are unable to serve as such. A relative of your ex would also be unable to serve unless they are also your relative. For example, your son or daughter could still serve in a fiduciary role for you because they are relatives of both of you. Your ex’s parents would not be able to serve.
Can my ex inherit?
Arizona law says that the divorce of a marriage revokes any revocable disposition or appointment of property made by a divorced person to that person’s former spouse or to the former spouse’s relative unless as provided by the express terms of a governing instrument, contract or a court order.
Basically, this means that even if your spouse is the beneficiary of your estate plan, your ex won’t inherit from you. Not only is your ex cut out from your estate plan; your ex’s family is too. There is an exception for if your ex’s family is also related to you. For example, your kids would still be able to inherit from you, even if they were also your ex’s kids. On the other hand, your ex’s brother, sister, parent, etc. would be treated as having predeceased you.
This rule applies to any revocable disposition of property, meaning it applies to wills and trusts. It even applies to beneficiary designations.
So what happens to the assets your ex would have inherited?
When your ex (or their relative) is disinherited, the law does not revoke the entire document- only that specific disposition. This means that your fiduciary should treat your ex as though they predeceased you. Many estate plans include provisions for what should happen if one beneficiary predeceases you. Your fiduciary should divide your assets according to those provisions. For beneficiary designations, if you have named a contingent beneficiary, they should receive the distribution.
What if I still want my ex to inherit or serve as fiduciary?
There is, of course, a way to bypass this rule. If you still want your ex to inherit assets following your divorce you can update your estate plan to reflect that. You can also still have them serve as fiduciary. You just need to make it very clear in your documents that it was your intent for them to serve or inherit in the documents. An estate planning attorney can help make this clear in an update. Your attorney will likely include language that you executed your estate plan in contemplation of your divorce or following your divorce.
The court may issue an order as part of the divorce that directs how assets are divided on the death of one party. That sort of order would allow one spouse to inherit from the other. You and your ex may have entered into a contract before, after, or during the marriage that controls. Absent any of these circumstances though, your ex will likely be unable to inherit from you.
Of course, any time you experience a major life change like divorce, marriage, a new child or a death, you should talk to your estate planning attorney. Your attorney can make sure that your documents still truly reflect your wishes.
2 Responses
Be aware that Arizona’s revocation-on-divorce statute does not apply to benefits governed by ERISA. Egelhoff v. Egelhoff, 532 U.S. 141 (2001).
In the absence of a contrary provision in the ERISA plan documents, if the beneficiary designation is not changed, the ex-spouse will be entitled to receive the benefit. There is a circuit split on whether the ex-spouse holds the benefits in a constructive trust. The Ninth Circuit has held “a state court cannot achieve through a constructive trust on the proceeds of a pension plan what this court maintains it cannot achieve through a QDRO. Any alternative rule would allow for an end-run around ERISA’s rules and Congress’s policy objective of providing for certain beneficiaries, thereby greatly weakening, if not entirely abrogating, ERISA’s broad preemption provision.” Carmona v. Carmona, 603 F.3d 1041, 1061 (9th Cir. 2010), cert. denied, 562 U.S. 1219 (2011).
Even in those cases in which A.R.S. § 14-2804 is applicable, a financial institution or other third party, acting in good faith reliance on the validity of the governing instrument, and who has not received written notice of the divorce, is protected. A.R.S. § 14-2804(F).
Therefore, I agree that “any time you experience a major life change like divorce, marriage, a new child or a death, you should talk to your estate planning attorney” so that the documents can be revised to reflect on their face the client’s current desires with respect to the disposition of his or her estate. Relying solely on the revocation-of-death statute is, in my view, unwise.
Good article. Probably should have mentioned that 401(k) Plans work differently. Also, should have mentioned the difficulties of recovering assets wrongly paid to (or claimed by) an ex-spouse.