Updating Your Will and Power of Attorney After Divorce in Massachusetts

Massachusetts law automatically revokes your ex-spouse's role in your will and estate plan when the divorce is final. But it doesn't replace them with anyone. If you don't update your documents, you'll have a will with no executor, a healthcare proxy with no agent, and a power of attorney with no designated person — which is almost as bad as having no estate plan at all.

What G.L. c. 190B, § 2-804 Actually Does

When your judgment absolute enters, Massachusetts law (G.L. c. 190B, § 2-804) automatically revokes every provision in your existing estate planning documents that names your ex-spouse. This includes:

• Executor/personal representative of your will
• Trustee of your revocable trust
• Beneficiary of your will or trust
• Healthcare proxy agent
• Power of attorney agent

The statute treats these provisions "as if the former spouse and the former spouse's relatives died immediately before the entry of the judgment." Your ex-spouse is effectively erased from the documents.

This is good — it prevents an ex-spouse from inheriting your estate or making medical decisions for you by default. But it creates an immediate problem: the statute revokes without replacing.

The Replacement Problem

After revocation, your estate planning documents have gaps:

Your will: If your ex-spouse was your sole executor, the court must now appoint someone. If your ex-spouse was your sole beneficiary, your assets pass under intestacy rules — which may not match your wishes. In Massachusetts, intestacy sends everything to your children (or your parents if you have no children), regardless of what you would have wanted.

Your healthcare proxy: If your ex-spouse was your only healthcare agent and you're incapacitated, no one is legally authorized to make medical decisions for you. A family member would need to petition the court for guardianship — a process that takes weeks and costs thousands of dollars.

Your durable power of attorney: If your ex-spouse was your agent for financial matters and you become incapacitated, no one can pay your bills, manage your investments, or handle your banking.

None of these gaps fix themselves over time. You have to create new documents.

What to Update and When

Start these updates as soon as the judgment absolute enters. During the nisi period, you're still technically married, and the automatic revocation hasn't taken effect yet — which means your ex-spouse is still your designated agent and beneficiary during those 90 days.

1. Execute a New Will or Codicil

Draft a new will or add a codicil (amendment) to your existing will. At minimum, you need to:

• Name a new executor/personal representative
• Update your beneficiary designations (who inherits what)
• Name a guardian for minor children if applicable
• Update any trust provisions

In Massachusetts, a will must be signed by the testator, witnessed by two competent witnesses, and is best notarized with a self-proving affidavit to streamline probate.

2. Execute a New Healthcare Proxy

Massachusetts healthcare proxy forms are available through most hospitals and the state government website. You need to designate:

• A new healthcare agent (someone you trust to make medical decisions if you can't)
• An alternate agent in case your primary agent is unavailable

The form must be signed by you and two witnesses. Your designated agent cannot be one of the witnesses.

3. Execute a New Durable Power of Attorney

Designate a new agent to handle financial matters if you become incapacitated. In Massachusetts, a durable power of attorney should:

• Specify the powers you're granting (banking, real estate, investments, tax filing)
• Name an alternate agent
• Be signed, witnessed, and notarized

4. Update Your Revocable Trust (If You Have One)

If you created a revocable trust during the marriage, the statute revokes your ex-spouse's roles. But the trust may also need substantive changes to:

• Reflect new asset ownership after the property division
• Update successor trustee designations
• Revise distribution provisions for beneficiaries

The ERISA Exception

One critical area the state statute does NOT cover: employer-sponsored retirement accounts and group life insurance. Under federal ERISA law, your ex-spouse remains the beneficiary on your 401(k), 403(b), pension, and group life insurance regardless of the divorce — even after the § 2-804 revocation.

You must separately update these beneficiary designations directly with your employer's HR department. The Supreme Court confirmed this in Egelhoff v. Egelhoff — the plan form controls, not state law.

The Nisi Period Vulnerability

During the 90-day nisi period, the § 2-804 automatic revocation has not yet taken effect. You're still legally married, and your existing estate planning documents are fully operative — meaning your ex-spouse is still your healthcare agent, executor, and beneficiary.

If you become incapacitated or die during the nisi period, your ex-spouse has full authority under your existing documents. This is especially relevant for the healthcare proxy and durable power of attorney, which are actively used during incapacity — not just at death.

If you're concerned about this exposure, consult an attorney about executing new estate planning documents during the nisi period. The automatic restraining order (Rule 411) restricts asset transfers, but it does not prevent you from updating your own estate planning documents.

What This Costs

Estate planning updates don't have to be expensive. Many family law attorneys or estate planning attorneys will prepare a basic package (will, healthcare proxy, durable power of attorney) for a flat fee of $500-$1,500 in Massachusetts. This is a fraction of what a guardianship petition would cost if you became incapacitated without a valid healthcare proxy.

If your situation is straightforward, Massachusetts provides free healthcare proxy forms through the state government website. But for the will and power of attorney, working with an attorney ensures the documents are properly drafted and executed.

The Massachusetts Post-Divorce Checklist includes an estate plan audit worksheet that identifies every document needing updates, tracks each replacement document, and highlights the ERISA beneficiaries that state law won't cover.

See more Massachusetts guides →