Do I need to wait until my divorce is final to update my Will?

Should you wait until your divorce is final before you update your will?

This question is really about marital rights. In North Carolina, the answer depends on your particular circumstances. Spouses have certain rights, including the right to inherit from each other. Under normal circumstances, generally, spouses have:

(1) the right to inherit a percentage of the estate of the other spouse if there is no will;

(2) the right to claim or succeed to a homestead in the real property of the other spouse;

(3) the right to petition for an elective share of the estate of the other spouse and take either the elective intestate share provided or the life interest in the property instead

(4) the right to any year's allowance in the personal property of the other spouse;

(5) the right to administer the estate of the other spouse; and

(6) rights or interests in the property of the other spouse which may have been acquired by a settlement before or after marriage settled upon the offending spouse solely in consideration of the marriage.

NCGS § 31A-1(b)

These rights are lost when a divorce is final.  However, even before you receive an absolute divorce in North Carolina, there are some situations that will cause your estranged spouse to lose the right to inherit from you.

For example, if your spouse has abandoned you and is living with someone else at the time of your death, your spouse loses the right to inherit from you. Here is a list of the circumstances that will terminate your estranged spouse's marital right to inherit from you.

(1)  An absolute divorce, marriage annulment, a divorce from bed and board; or

(2)  A voluntary separation from the other spouse who lives in adultery that has not been condoned; or

(3)  A willful abandonment without just cause and a refusal to live with the other spouse and the guilty spouse is not living with the other spouse at the time of such spouse's death; or

(4)  A divorce which is not recognized under the laws of this State; or

(5)  Knowingly entering into a bigamous marriage.

NCGS § 31A-1(a)

If you are going through one of these situations, you may want to go ahead and update your documents before your absolute divorce is final. However, before making changes, talk to an attorney first to avoid problems later.

You should always update your will and other estate planning documents after a divorce is finalized and, as discussed above, there are situations when you can update your documents sooner. For more information about updating your estate plan before a divorce is finalized or after a divorce, call us at 704-887-5242 or fill out the form below to schedule a private consultation in our Ballantyne office. 

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DISCLAIMER: This is an advertisement and contains general educational information only. The information offered in this post does not constitute legal advice and reading the information does not create an attorney-client relationship with Nancy Roberts or the Roberts Law Firm, LLC/Law Office of Nancy L. Roberts, PLLC. Before taking any action, you should always seek legal advice from an attorney you hire, who advises you based on your specific facts, circumstances, situation, and the appropriate governing law.


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