Yes, divorced parents should change their will. Divorce can automatically void some provisions favoring a former spouse, but custody, guardianship, and beneficiary designations are not fixed the same way. Draft a new will, name an alternate guardian if needed, and update every account that lists your ex as a beneficiary.
Roughly 40 to 50 percent of marriages in the United States end in divorce, and many of those involve children under 18. Once the divorce settlement and custody arrangements are final, it is easy to feel like the hard part is over. But most divorce attorneys never mention what a divorced parent should do about their will, and that gap leaves a lot of people exposed. Your divorce decree covers day-to-day custody. It does not automatically fix your estate plan.
Will My Ex Get Full Custody if Something Happens to Me?
This is usually the first question divorced parents ask, and the honest answer is usually yes. Courts typically award full custody to the surviving parent if you die while your children are minors, regardless of what your will says, unless there is clear evidence that the surviving parent is unfit. According to Cornell Law School's overview of intestate succession, family law generally gives priority to a surviving legal parent over any other guardianship preference a deceased parent expressed. You can still name an alternate guardian in your will and explain your reasoning, but a court is not obligated to follow it while the other legal parent is alive and fit to parent.
What Happens to the Will I Made With My Ex?
In many states, divorce automatically revokes provisions in a will that favor a former spouse, treating that person as if they had died before you, according to Cornell Law School's entry on revocation of wills, which describes revocation by operation of law as automatic upon events like divorce. This rule has a gap most people miss: if your will names a contingent, or backup, beneficiary in case your ex-spouse predeceased you, that provision can still be enforced exactly as written, even though you never intended your in-laws to inherit after a divorce rather than a death. Do not assume the state has cleaned this up for you. Write a new will.
What if My Ex Would Be a Bad Influence on My Kids?
If you believe your former spouse should not have full custody, you can name an alternative guardian in your will and document your specific reasoning. A court is not required to follow your wishes, but a clear, documented explanation carries more weight than a vague preference. Courts are more likely to consider deviating from a surviving parent's custody when there is evidence such as:
- The former spouse has repeatedly ignored a shared parenting agreement or rarely visits the child
- The former spouse is not part of the child's life at all
- The former spouse is incarcerated
- The former spouse has engaged in illegal activity in the child's presence
If any of these apply to your situation, talk to a family law attorney about your specific options rather than relying solely on a will provision.
What Should I Do if I Am Still in the Middle of a Divorce?
Your existing will remains legally valid until you are officially divorced, even during a legal separation. Courts do not assume you would have wanted to revoke it just because a divorce is pending. If you are still married on paper but the relationship is over, update your estate plan immediately rather than waiting for the final decree. You can create a new will, or add a codicil, a written amendment that changes specific provisions without redoing the entire document.
How Can I Provide for My Children After a Divorce?
Start by updating every beneficiary designation tied to accounts that pass outside your will, including retirement accounts, life insurance policies, and payable-on-death bank accounts. These designations override what your will says, so an outdated one can undo your other planning entirely. Next, update your power of attorney and healthcare directive to remove your ex if they are still named. If you are unclear on any of these terms, our estate planning glossary defines them in plain English. Finally, consider whether a trust makes sense for your children. A trust lets a trustee manage assets on your children's behalf, often avoiding probate, until they reach an age you choose.
Common Mistakes to Avoid
- Assuming divorce automatically erases every mention of your ex from your will
- Leaving your ex as beneficiary on life insurance or retirement accounts
- Failing to name an alternate guardian even when you have real concerns
- Waiting until the divorce is finalized to update your estate plan
- Forgetting to update your power of attorney and healthcare directive alongside your will
How FastWill Handles This
FastWill's online will builder makes it straightforward to draft a new will after a divorce, update beneficiaries, and name a guardian with your specific reasoning documented. For the broader picture of what else to review, see our companion article on estate plan changes divorced parents should make.
Frequently Asked Questions
Do I need a lawyer to update my will after divorce?
Not necessarily. A straightforward update, like naming a new executor or guardian, can often be handled through an online will builder. Complex custody disputes or contested guardianship benefit from a family law attorney.
Can I use a codicil instead of writing a whole new will?
Yes, a codicil can add or change specific provisions without redrafting the entire will. For a major life event like divorce, many people find it simpler and clearer to just write a new will.
Is a handwritten will valid if I need to make quick changes?
Handwritten, or holographic, wills are legal in some states, but courts often invalidate them for missing formalities. Use one only as a stopgap while you finalize a properly executed will.
Will naming an alternate guardian guarantee a court follows my wishes?
No. Courts prioritize a surviving legal parent's custody rights. Your documented reasoning can matter if you have real, specific concerns, but it is not a guarantee.
When should I update my will if I am still going through a divorce?
As soon as possible. Your current will remains valid until the divorce is final, so do not wait for the decree to update your estate plan if your circumstances have already changed.
