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What Rights and Property Interests Can Survive Divorce?

March 28, 2024

The result of a divorce is to render the spouses single and unmarried. The divorce also determines which party owns each of the couple’s assets or is responsible for the payment of liabilities. While the dissolution of marriage should comprehensively address all rights and obligations of the parties, it may leave certain matters unresolved. Any rights and property interests that survive divorce must be expressly terminated by the parties to avoid unintended and damaging consequences.

Rights Automatically Revoked By Law Upon Divorce

Through legislation, most states provide for the automatic termination of certain rights upon the issuance of a divorce unless expressly designated as surviving the divorce. These include revocation of the former spouse’s designation as:

  • Beneficiary under a will or trust
  • Covered under the other spouse’s employer-based health insurance, as limited or exempted under ERISA
  • Beneficiary of the other spouse’s life insurance policy, retirement accounts, and transfer-on-death accounts
  • Health care proxy for the other spouse.

Rights That May Survive Divorce If Not Addressed in the Divorce Decree

The divorce decree should expressly indicate ownership of all marital property. If this is not done, then a spouse may still have rights to anything that isn’t mentioned. Some significant items that should be allocated in the divorce decree include military disability payments and pensions, jointly held real estate, interests in a business, homestead rights in property, and rights as a creditor or obligor of a spouse.

Rights That Must Be Expressly Revoked After Divorce

While it may seem reasonable that a divorce terminates all authorizations one spouse gave the other during the marriage, that may not always be the case. For example, authorizations provided to banks, credit card companies, or financial institutions allowing your spouse to access your accounts or communicate with the institution on your behalf may continue after divorce unless you notify the institutions and revoke your consent. The same is true of authorization to contact service providers such as utilities, cell phone carriers, and internet service providers.

Protecting Yourself After Divorce

It’s critical to understand what state law covers and doesn’t cover with respect to the revocation of your spouse’s rights. If you are already divorced, it’s best to consult a knowledgeable attorney about what rights and interests your former spouse may still have and terminate them as soon as possible. That includes contacting all financial institutions and service providers to ensure you revoke account access privileges. Even though your former spouse may no longer be able to engage in financial transactions, he or she could learn about your purchases and financial situation. Access to your cell phone and internet providers may also provide your spouse with the means of monitoring your cell phone communications and even accessing your e-mail and text messages. 

If you are considering divorce or going through the divorce process, you should have an experienced attorney who can ensure that the marital separation agreement or judgment and divorce decree addresses all rights retained or transferred during the marriage as well as the types of consents and authorizations that are to be retained or surrendered.

Divorce is stressful and it’s not uncommon to forget about details like these. Talk with your attorney or contact us for a consultation. We can assist with your divorce as well as updating your estate plan to account for your divorce.

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