Estate Planning After Divorce in North Dakota

North Dakota's revocation-on-divorce statute does some of the cleanup automatically — but not all of it. If you assume the divorce decree rewrites your entire estate plan, you're leaving gaps that could send assets to your ex-spouse or leave the wrong person making medical decisions on your behalf.

Here's what the law handles, what it doesn't, and the exact documents you need to update.

What the Law Revokes Automatically

Under N.D.C.C. § 30.1-10-04 (modeled on Uniform Probate Code § 2-804), a final divorce decree automatically revokes any revocable disposition of property made to your former spouse in a "governing instrument" executed before the divorce. Your ex is legally treated as if they predeceased you.

This automatic revocation covers:

• Wills — any bequest or appointment naming your ex-spouse
• Revocable living trusts — distributions to your ex
• Private life insurance policies — beneficiary designations
• IRAs — beneficiary designations
• POD bank accounts (payable-on-death) and TOD brokerage accounts (transfer-on-death)
• Revocable transfer-on-death deeds for real estate

The statute is a safety net, not a plan. It only kicks in if you die without updating your documents — and relying on it creates unnecessary ambiguity for the institutions that have to process your accounts.

What the Law Does NOT Revoke

The automatic revocation has critical limits:

ERISA-governed employer plans. Federal law preempts state revocation statutes for employer-sponsored life insurance, 401(k)s, 403(b)s, and pension plans. If your ex is still listed as beneficiary on your employer's group life insurance or retirement account, they will receive those benefits regardless of the divorce — even if your will says otherwise. The U.S. Supreme Court settled this in Egelhoff v. Egelhoff (2001): ERISA trumps state law. You must contact your HR department and submit new beneficiary designation forms.

NDPERS and TFFR plans. North Dakota public employee retirement accounts follow their own statutory rules. Beneficiary changes require forms submitted directly to the plan administrator, not just a will update.

Irrevocable trusts. If you created an irrevocable trust naming your ex-spouse during the marriage, the divorce does not automatically modify it. You'll need a court order or the trust's own amendment provisions (if any exist) to make changes.

The Post-Divorce Estate Planning Checklist

Work through these in order — each builds on the previous step:

1. Update or Replace Your Will

Even though N.D.C.C. § 30.1-10-04 revokes bequests to your ex, a will that references a former spouse creates confusion during probate. Draft a new will that:

• Names a new personal representative (executor)
• Updates guardian designations for minor children
• Reflects the current ownership of assets post-division
• Removes any references to your former spouse

In North Dakota, a valid will requires the testator's signature and two witnesses (N.D.C.C. § 30.1-05-02). A self-proved affidavit speeds probate — attach it at signing.

2. Revoke and Replace Powers of Attorney

A durable power of attorney (financial) and a healthcare power of attorney may still name your ex-spouse as your agent. North Dakota law does not automatically revoke POA designations upon divorce unless the document itself contains a revocation-on-divorce clause.

Execute new powers of attorney that name a trusted family member or friend. Deliver written revocation notices to any institution (bank, hospital, brokerage) that has the old POA on file.

3. Sign a New Healthcare Directive

Under the North Dakota Healthcare Directives Act (N.D.C.C. Chapter 23-06.5), your healthcare directive may name your ex as your healthcare agent. If they still hold that designation and you become incapacitated, they could make end-of-life decisions for you.

Sign a new healthcare directive naming a different agent. File copies with your primary care physician, your local hospital, and any family members who should know your wishes.

4. Update Every Beneficiary Designation

This is the most commonly skipped step — and the most expensive to get wrong. Go through every account that has a named beneficiary:

• Employer group life insurance (ERISA-governed — state revocation doesn't apply)
• 401(k), 403(b), pension plans (ERISA — must update directly with plan administrator)
• NDPERS or TFFR accounts (submit forms to the plan office)
• Individual life insurance policies
• IRAs and Roth IRAs
• POD bank accounts
• TOD brokerage and investment accounts
• Annuities

For each account, request the current beneficiary designation form, complete a new one, and confirm receipt in writing. Keep copies of every submitted form.

5. Review and Update Trust Documents

If you have a revocable living trust, amend it to remove your ex-spouse as beneficiary and successor trustee. If the trust held marital property, update the schedule of assets to reflect the post-divorce division.

The Rule 8.4 Freeze — Timing Matters

During the divorce itself, North Dakota Rule of Court 8.4 imposes an automatic restraining order that prohibits either spouse from changing beneficiary designations or canceling insurance coverage. This freeze lifts the moment the final decree is entered. That's your signal to start — update everything the same week the decree is signed, before the task list gets buried.

What Happens If You Do Nothing

If you die without updating your estate documents after divorce, the automatic revocation statute treats your ex as having predeceased you. For your will, that means bequests pass to contingent beneficiaries or through intestacy. For ERISA accounts, your ex collects anyway because federal law overrides the state statute. The result is a messy, expensive probate that may not reflect your wishes.

The North Dakota After-Divorce Checklist includes a complete estate planning worksheet that tracks every document, every account, and every deadline — so nothing falls through the cracks.

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