In estate planning, the relationship between a Marital Settlement Agreement (MSA) and a will can create unexpected complications, particularly in Illinois. If you have gone through a divorce and have an MSA in place, understanding how it interacts with your will is essential to ensuring your assets are distributed according to your wishes.
What Is a Marital Settlement Agreement?
A Marital Settlement Agreement is a legally binding contract created during a divorce that outlines the division of assets, property rights, financial responsibilities, spousal support obligations, and other terms agreed upon by the divorcing parties. Once approved by the court and incorporated into the divorce decree, the MSA becomes an enforceable court order under Illinois law.
How an MSA Can Override a Will in Illinois
Under Illinois law, an MSA that has been incorporated into a divorce judgment carries the weight of a court order. This means that if your will contains provisions that conflict with the terms of your MSA, the MSA may take precedence in determining how certain assets are distributed after your death.
For example, if your MSA requires you to maintain a life insurance policy naming your former spouse as beneficiary, your will cannot override that obligation. Similarly, if the MSA grants your former spouse rights to certain retirement accounts or real property, those provisions remain enforceable regardless of what your will says.
Illinois Law on Divorce and Wills
Illinois has specific statutes that address what happens to a will after a divorce. Under 755 ILCS 5/4-7, when a person divorces, any provisions in their will that benefit the former spouse are automatically revoked by operation of law, unless the will specifically states otherwise. However, this automatic revocation does not apply to obligations created by an MSA that has been incorporated into a court order.
This creates a critical gap that many people overlook. While the law automatically removes your ex-spouse from your will after divorce, it does not eliminate MSA-based obligations. If your MSA requires you to leave certain assets to your former spouse or maintain specific beneficiary designations, those requirements survive the divorce and must be honored.
Common Problems When MSAs and Wills Conflict
Several common scenarios arise when divorced individuals fail to coordinate their MSA with their estate plan:
- Outdated beneficiary designations: Retirement accounts, life insurance policies, and payable-on-death accounts pass outside of probate based on beneficiary designations, not your will. If your MSA requires certain beneficiary designations and you change them, your estate could face legal action.
- Conflicting property distributions: If your will leaves property to a new spouse or children but your MSA grants rights to that same property to your former spouse, the MSA obligation typically prevails.
- Failure to update after divorce: Many people assume their divorce automatically resolves all estate planning issues. Without a deliberate review and update of your will, trusts, and beneficiary designations, unintended consequences can result.
Steps to Protect Your Estate Plan After Divorce
To avoid conflicts between your MSA and your will, take these steps after your divorce is finalized:
- Review your MSA carefully: Identify every provision that affects property distribution, beneficiary designations, or financial obligations that extend beyond the divorce.
- Update your will: Draft a new will that accounts for MSA obligations while reflecting your current wishes for asset distribution.
- Review all beneficiary designations: Check life insurance policies, retirement accounts (401(k), IRA), bank accounts, and any transfer-on-death or payable-on-death designations to ensure they align with both your MSA and your updated estate plan.
- Consider a trust: A revocable living trust can provide additional control over asset distribution and help ensure that MSA obligations are met while protecting your remaining assets for your intended beneficiaries.
- Update powers of attorney and healthcare directives: Remove your former spouse from any documents granting decision-making authority unless your MSA requires otherwise.
Why You Need an Attorney Who Understands Both Family Law and Estate Planning
The intersection of divorce law and estate planning is complex. An attorney who practices in both areas can identify potential conflicts between your MSA and your estate plan, draft documents that satisfy your legal obligations while protecting your wishes, and help you avoid costly probate disputes.
At Hunsinger Law Group, we handle both family law and estate planning matters in Illinois and Missouri. We can review your MSA alongside your estate plan to ensure everything is aligned and that your wishes are protected.
See all of our estates posts.
Whether you are starting an estate plan or have had one for years, have us review it to make sure that your wishes are protected. Call (833) 256-6644 or use our form to schedule a consultation.
HUNSINGER LAW GROUP
Helping secure your legacy and peace of mind
See all of our estates posts
Whether you're starting an estate plan or have had one for years, have us review it to make sure that your wishes are protected. Call (833) 256-6644 or use our form to
schedule a consultation.
HUNSINGER LAW GROUPHelping secure your legacy and peace of mind