Montana Estate Planning After Divorce: What to Update Immediately

Montana law automatically revokes certain estate planning provisions that benefit your ex-spouse when your divorce is finalized. But it doesn't revoke all of them — and the gaps are exactly where expensive mistakes happen.

Under MCA 72-2-814, a divorce or annulment automatically revokes any provision in your will that benefits your former spouse, along with any nomination of the former spouse as personal representative, trustee, or guardian. Montana treats the former spouse as if they predeceased you for purposes of interpreting the will.

The problem is everything that isn't your will.

What Montana Law Does NOT Automatically Update

Life insurance policies. If your ex-spouse is named as beneficiary on a life insurance policy, the insurance company will pay them — regardless of your divorce decree, regardless of your will, regardless of what you told your family. Federal law (ERISA) controls employer-provided policies and supersedes state law. Non-ERISA policies may be subject to Montana's revocation statute, but insurance companies routinely pay the named beneficiary and leave disputes for the courts to sort out.

Retirement accounts. Your 401(k), IRA, pension, and other retirement accounts pass by beneficiary designation, not by will. If your ex-spouse is still listed as beneficiary on your 401(k), they receive the entire account balance when you die. ERISA-governed plans (most employer plans) are particularly resistant to override — even a court order may not change the beneficiary designation if the plan administrator never received an updated form.

Bank accounts with POD designations. Payable on Death designations on checking, savings, and brokerage accounts transfer those funds directly to the named beneficiary. If your ex-spouse is the POD beneficiary, Montana's will revocation statute doesn't help you — the bank isn't reading your will.

Transfer on Death deeds on real property. If you recorded a TOD deed naming your ex-spouse as the beneficiary on your home, that deed may still be effective after divorce. While MCA 72-2-814 likely covers revocable beneficiary designations, the safest approach is to record a new TOD deed with updated beneficiaries rather than relying on the statute.

Powers of attorney. Montana revokes a former spouse's authority under a power of attorney upon divorce (MCA 72-31-366). But if you haven't replaced the document with a new agent, you effectively have no power of attorney — leaving no one authorized to manage your finances or make medical decisions if you become incapacitated.

The Post-Divorce Checklist

Within 30 days of your divorce being finalized, take these actions:

1. Update every beneficiary designation. Contact each institution directly:

• Life insurance (employer and private policies)
• 401(k), 403(b), pension, and IRA accounts
• Bank accounts with POD designations
• Brokerage accounts with TOD designations
• Health Savings Accounts

For ERISA plans, request the beneficiary change form, complete it, and get written confirmation that the change was processed. Don't assume a phone call or email is sufficient.

2. Execute a new will. Montana's automatic revocation treats your ex as if they predeceased you, which means your will's contingency provisions kick in. Those contingencies might direct your assets in ways you didn't intend post-divorce. Write a new will that reflects your current wishes, names new beneficiaries, and nominates a new personal representative.

3. Record a new TOD deed. If your home has a Transfer on Death deed naming your ex-spouse, record a revocation and file a new TOD deed with updated beneficiaries at the County Clerk and Recorder. The filing costs about $20 for the first page.

4. Execute new powers of attorney. Your financial and medical powers of attorney need new agents. Choose someone you trust who is not your former spouse. For the medical power of attorney, also update your Advance Health Care Directive and, if you've registered with the Montana End-of-Life Registry, submit updated documents.

5. Update your guardian nominations. If you have minor children and your will nominated your ex-spouse's relatives as backup guardians, reconsider whether those nominations still make sense.

6. Review your divorce decree for specific obligations. Your divorce agreement may require you to maintain life insurance for your ex-spouse or children, keep certain beneficiary designations in place, or maintain specific trusts. Don't change anything that violates a court order — but do understand exactly what's required versus what's discretionary.

The Timing Matters

Don't update your estate plan before the divorce is finalized. If you change beneficiary designations or execute a new will while still legally married, and then die before the divorce is granted, your estate plan may not reflect either your married intentions or your divorced intentions — creating confusion and potential litigation.

The day your divorce decree is final is the day to start. Not before, and not months later when it feels less raw. The longer you wait, the greater the risk that an outdated designation sends money to the wrong person.

Starting Fresh

A divorce is one of the clearest triggers for a complete estate plan overhaul. The Montana Basic Estate Planning Kit provides the framework: a new Montana-compliant will, coordinating beneficiary designation worksheets, a power of attorney, and an advance health care directive — all designed to work together as a unified post-divorce plan.

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