Update Your Will After Divorce: What You Need to Know

Under North Carolina General Statutes § 31-5.4, if a testator’s marriage is dissolved by absolute divorce or annulment after the execution of a will, the former spouse is deemed to have predeceased the testator for purposes of interpreting or administering the will—unless the will expressly states a contrary intent. The statute operates to revoke any provisions in the will in favor of the former spouse, including any appointment of the former spouse as executor, trustee, conservator, guardian, or in any other fiduciary role.

The North Carolina Court of Appeals has upheld this statutory revocation in Gibboney v. Wachovia Bank, N.A., 174 N.C. App. 834 (2005), where the court confirmed that unless the will expressly provides that the former spouse should remain a beneficiary or fiduciary despite divorce, the former spouse is treated as having predeceased the testator, and any testamentary gifts or appointments are void. This is especially important for those who may have had an amicable divorce and desire to have their ex-spouse stay in the will to either receive a gift or act as guardian o rtrustee for their children. 

While § 31-5.4 provides an important safeguard, it is not a substitute for proper estate planning. A divorce typically results in significant changes to a person’s assets, liabilities, and family relationships. Property division, retirement account adjustments, real estate transfers, and the dissolution of marital trusts can all alter the composition of an estate. In addition, although the statute revokes gifts to the former spouse, it does not address other provisions that may unintentionally benefit the former spouse’s family or fail to reflect the testator’s revised intentions.