Divorce, Remarriage, and Your Estate Plan
Attorneys Brenton Begley and Jane Dearwester
Major life changes like divorce and remarriage can have serious and sometimes unintended consequences for your estate plan. In this week’s episode of The Elder Law Report, attorneys Brenton Begley and Jane Dearwester discussed how marriage and divorce impact estate planning under North Carolina law.
Marriage Creates Automatic Legal Rights
In North Carolina, marriage immediately gives spouses certain legal rights, often without people realizing it.
One of the most significant is inchoate marital rights in real property. As soon as you get married, your spouse gains a legal interest in any real estate you own in North Carolina, even if:
- The property was purchased before marriage
- Your spouse’s name is not on the deed
Without a prenuptial agreement addressing these rights, selling or transferring property can later become complicated.
Marriage also gives a spouse:
- The right to claim an elective share of an estate
- The right to request a year’s allowance
- Certain protections that override an outdated will
These rights can be waved – only knowingly and formally – usually through a prenuptial or postnuptial agreement.
What Happens to Your Plan After Divorce?
There is some good news. Under North Carolina law, divorce automatically removes an ex-spouse fro certain roles by operation of law, even if you don’t immediately update your documents.
After divorce, an ex-spouse is typically removed as:
- Executor under your will
- Agent under a durable power of attorney
- Beneficiary under your will
However, this automatic removal does not apply to everything.
The Biggest Divorce Pitfall: Beneficiary Designations
Divorce does not automatically remove an ex-spouse from:
- Trusts (especially joint trusts)
- Life insurance policies
- Retirement accounts
- Payable-on-death (POD) and transfer-on-death (TOD) accounts
- Jointly owned property or bank accounts
These beneficiary designations override your will. If they aren’t updated, an ex-spouse could still inherit assets, even years after a divorce.
This is one of the most common (and costly) estate planning mistakes attorneys see.
Remarriage Without Updating Your Plan is Risky
If you remarry and rely on an old will – or don’t create a new estate plan at all – state law can override your intentions.
In North Carolina:
- You cannot fully disinherit a spouse unless they knowingly sign a waiver
- A surviving spouse may claim an elective share of up to 50% of the estate, depending on the length of the marriage
- A spouse may also request a year’s allowance of up to $60,000 in personal property
These claims can trigger litigation, delays, and unnecessary legal expenses for your loved ones after your death.
Blended families are especially vulnerable if plans aren’t updated clearly and intentionally.
Estranged Spouses Have Rights Until Divorce
Another sticky situation involves estranged spouses. Even if you haven’t spoke in years and live completely separate lives, if you’re still legally married, that spouse retains legal rights to your estate.
There are legal ways to divorce an estranged spouse, even if their whereabouts are unknown. Finalizing the divorce is critical to fully sever those legal ties and protect your estate and family from future complications.
There is No Common Law Marriage in NC
North Carolina does NOT recognize common law marriage. Living together for decades, sharing finances, or calling each other husband and wife does not create a legal marriage.
However, if you were validly married under common law in another state and then moved to North Carolina, that marriage may still be recognized. This is another area where legal guidance is important.
The Bottom Line
Marriage and divorce are emotional, life-altering events; but they are also major legal events with lasting estate planning consequences and concerns.
Your estate plan includes more than just a will. It also includes:
- Powers of Attorney
- Trusts
- Deeds
- Beneficiary designations on accounts and policies
Any major life change – marriage, divorce, remarriage – is a clear sign that your estate plan should be reviewed and updated.
McIntyre Elder Law Can Help
If you have questions about preparing your assets, navigating divorce or remarriage, or updating your estate plan, the attorneys at McIntyre Elder Law are here to help.
📍 Offices in Shelby, Charlotte, and Hendersonville
📞 Call us at 1-888-999-6600
🌍 Visit our website: www.mcelderlaw.com
Don’t wait until it’s too late—take control of your future today!
Attorney Brenton Begley
Estate Planning & Elder Law Attorney
CLO & Partner, McIntyre Elder Law
Shelby, NC
Attorney Jane Dearwester
Estate Planning & Elder Law Attorney
McIntyre Elder Law
Shelby, NC
