Alabama’s § 43-8-137 addresses the effect of divorce or annulment on provisions in a will for a former spouse. That is a will statute.
It does not change your beneficiary designations, your deed, or your power of attorney. Those are the parts that usually control the most money — and they stay exactly as they were until you personally change them.
What a divorce decree does not reach
| Document | Automatically updated? | What to do |
|---|---|---|
| Will — provisions for the former spouse | Addressed by § 43-8-137 | Still rewrite it. Executor, guardian and residuary clauses need thought |
| Life insurance beneficiary | No | File a new designation with the insurer |
| 401(k) and IRA beneficiary | No | File a new designation with the plan administrator |
| Payable-on-death bank account | No | Change it at the bank |
| Durable power of attorney | No | Revoke it and sign a new one |
| Advance directive and health care proxy | No | Sign a new one |
| Deed to real property | No | A new deed has to be prepared and recorded |
Federally governed retirement plans are administered according to the plan documents and the designation on file. Designations naming a former spouse have been enforced years after a divorce, and after the participant remarried.
Do not rely on the decree. Do not rely on the statute. Change the forms yourself and get written confirmation.
Ala. Code § 43-8-137 governs provisions in a will, not third-party beneficiary designations.The deed is its own job
A divorce decree may order that one spouse convey their interest in the marital home. The decree is not a deed. Someone still has to prepare the conveyance and record it with the probate judge of the county where the land sits (Ala. Code § 35-4-50).
Under § 35-4-90(a) an unrecorded conveyance is void as to later purchasers, mortgagees and judgment creditors without notice. We see divorces from ten years ago where the deed was never prepared, and it surfaces when the house is finally sold.
Note too that a decree ordering a transfer does not by itself remove a party from the mortgage. That is a refinance question, not a deed question.
Recently divorced, or about to be?
The estate side is a short appointment and it is the part most people forget entirely. Call the Athens office.
The order to do it in
- Revoke the old power of attorneyIn writing, and notify every institution holding a copy. Then sign a new one under Ala. Code § 26-1A-101 and following.
- Sign a new advance directiveUnder § 22-8A-4. Name a new health care proxy. Remember the witness rules — nobody related to you, entitled to your estate, or financially responsible for your care.
- Change every beneficiary designationLife insurance, retirement, annuities, payable-on-death accounts. Get written confirmation of each.
- Rewrite the willNot just the gift to the former spouse — the executor, the guardian nomination for minor children and the residuary clause all usually need rethinking.
- Deal with the deedPrepare and record whatever the decree requires. Then check whether the mortgage still needs addressing.
- Re-examine guardianship if you have minor childrenWho raises them if you die, and who manages the money, are separate questions now.
If you have minor children
Naming your children directly as beneficiaries after a divorce is a common instinct and usually the wrong move. An institution cannot pay a minor, which forces a conservatorship — and the funds may end up managed by the person you least wanted managing them.
A trust for the children’s benefit, with a trustee you choose, keeps that decision in your hands.
What we handle
We handle uncontested divorce, and we handle estate planning — wills, powers of attorney, advance directives, deeds and trusts. We do not handle contested family law matters. If a matter becomes contested we will tell you plainly rather than take it.
Divorce and estate planning questions
Does divorce automatically remove my ex from my will in Alabama?
Ala. Code § 43-8-137 addresses the effect of divorce or annulment on provisions in a will for a former spouse. Even so, rewrite the will — the executor, guardian and residuary clauses usually need rethinking, and relying on a statute to do your drafting is a poor plan.
Does divorce remove my ex-spouse as beneficiary on my 401(k)?
Do not assume so. Federally governed plans are administered according to the plan documents and the designation on file, and courts have enforced designations naming a former spouse long after the divorce. File a new designation yourself.
The decree says my ex has to sign over the house. Is that done?
Not until a deed is prepared and recorded with the probate judge of the county where the property sits. The decree is not a conveyance. And a transfer does not remove anyone from the mortgage — that takes a refinance.
Should I change my power of attorney after a divorce?
Immediately. It does not revoke itself. Revoke the old one in writing, notify every institution that holds a copy, and sign a new one.
Can I leave my ex-spouse out entirely?
For a former spouse, yes. The rules protecting a surviving spouse — the elective share under § 43-8-70 and the family protections in §§ 43-8-110 to 43-8-113 — apply to a current spouse, not a former one.
When should I update the estate plan — during or after the divorce?
Some steps can be taken during, and some are constrained until the decree. Raise it with your lawyer early rather than discovering afterwards that a year has passed with everything still naming your former spouse.
The estate side is the part people forget
Uncontested divorce and estate planning for families across Limestone, Madison, Morgan and the surrounding counties.
Daniel Shawn Pickens
Attorney at Daniel S. Pickens Law in Athens, Alabama. The firm handles estate planning, probate, real estate closings and title work, deeds, business formation and contracts for families and businesses across Limestone, Madison, Morgan, Lauderdale, Colbert, Franklin and Lawrence Counties.
