Imagine this scenario: Before divorcing, a husband's will leaves everything to his wife if she survives him. If she doesn't, the will directs that the estate be split—half to his heirs, half to hers. The couple divorces, but the husband never updates his will. Years later, he passes away.
Who inherits?
The answer might surprise you—and it depends heavily on which state you live in.
The Uniform Probate Code's Unexpected Problem
A thought-provoking article recently published in the Real Property, Trust and Estate Law Journal by Professor Thomas P. Gallanis of George Mason University's Antonin Scalia Law School identifies a significant glitch in the Uniform Probate Code (UPC) that has gone largely unnoticed since 1990.
The issue arises from two well-intentioned changes made to the UPC that year. First, the drafters expanded the revocation-on-divorce rules to cover not just the former spouse but also the former spouse's relatives. The reasoning was sound: after a divorce, the testator's former in-laws are likely to side with their own family member, so the testator probably wouldn't want them inheriting either.
Second, the UPC was amended to include "the state" within the statutory definition of "heirs." This means that when someone dies without any relatives close enough to inherit under intestacy laws, the state steps in as the ultimate heir.
Here's where it gets interesting. If a former spouse has no living relatives who qualify as heirs—or if all those relatives are deemed to have "disclaimed" under the revocation-on-divorce rules—the state becomes the former spouse's heir. And because the state isn't technically a "relative" of the former spouse, the revocation-on-divorce provision doesn't apply to it.
The result? Under the current UPC, a portion of your estate could escheat to your ex-spouse's home state, even though you clearly never intended that outcome.
How Ohio Handles This Situation Differently
Ohio has not adopted the Uniform Probate Code, and in this particular situation, that works to the benefit of Ohio residents.
Under Ohio Revised Code Section 2107.33, when a testator dies after a divorce without revising their will, any disposition of property made to the former spouse is revoked. The law treats the former spouse as having predeceased the testator.
Critically, however, Ohio's revocation-on-divorce statute does not extend to the former spouse's heirs. This means that if your will contains an alternative provision directing property to your former spouse's heirs, that provision remains valid after the divorce.
In our hypothetical scenario, an Ohio court would distribute the estate according to the will's alternative provisions: one half to the testator's heirs and one half to the former spouse's heirs. The property does not escheat to the state simply because the former spouse was divorced from the testator.
Ohio law only allows property to escheat when there are truly no heirs or next of kin to inherit under the intestacy statutes. Ohio Revised Code Section 2105.06 establishes a detailed hierarchy for distributing property through intestate succession, and Section 2105.08 provides that escheat to the state occurs only as a last resort when no other heirs exist.
Rights of the Former Spouse's Heirs Under Ohio Intestacy Law
Ohio law contains some unique provisions regarding the rights of a former spouse's heirs that practitioners should understand.
When a surviving spouse (called a "relict" in the older case law) dies intestate and without children, any real or personal property that came to them from their deceased spouse—whether by deed of gift, devise, or bequest—follows a special inheritance pattern. Under this doctrine, such property passes one-half to the brothers and sisters of the intestate relict (or their legal representatives) and one-half to the brothers and sisters of the deceased spouse from whom the property originated (or their legal representatives).
This rule only applies when the property was transferred by specific means—gift, devise, or bequest. If the property was transferred for consideration, the chain of descent is broken, and the former spouse's heirs have no special inheritance rights. Additionally, the property must remain in the estate in its original form; Ohio courts do not apply the doctrine of tracing property into a transmuted form.
These provisions create a unique line of succession that acknowledges the origin of certain property and ensures that the family of the original owner may share in its distribution under appropriate circumstances.
The Takeaway: Update Your Estate Plan After Major Life Events
This issue underscores a fundamental truth in estate planning: life changes require document updates. Whether you live in Ohio, Florida, or any other state, divorce is one of those critical moments when you should review and revise your estate planning documents.
While Ohio's approach may produce a more sensible outcome in the scenario described above, relying on statutory default rules is never the best estate planning strategy. After a divorce, you should review and update your will, update beneficiary designations on life insurance policies, retirement accounts, and transfer-on-death accounts, review any trusts you've established, and update powers of attorney and healthcare directives.
Professor Gallanis has proposed amendments to the UPC that would close this loophole by expanding the definition of "relatives of the former spouse" to include "heirs of the divorced individual's former spouse that are not heirs of the divorced individual." This sensible fix would prevent the unintended escheat problem while maintaining consistency with the UPC's overall approach.
Until such amendments are adopted, however, the best protection remains proactive estate planning and regular document review.
If you have questions about how divorce affects your estate plan, or if you need to update your estate planning documents after a major life change, contact our office to schedule a consultation.