Update Your Will, Power of Attorney, and Health Care Directive After Divorce in Minnesota

Minnesota's Automatic Revocation — and Why It Is Not Enough

Minnesota Statutes § 524.2-804 provides a safety net: when your dissolution is finalized, the law automatically revokes any provision in a governing instrument that names your former spouse as a beneficiary, fiduciary, or agent. Your ex-spouse is treated as if they predeceased you.

This applies to your will, revocable trust, power of attorney, health care directive, and beneficiary designations on life insurance, retirement accounts, and payable-on-death bank accounts — as long as those instruments are governed by state law.

The problem is that the automatic revocation does not replace your ex-spouse with anyone. It simply removes them. If your will named your spouse as sole beneficiary and personal representative, the revocation leaves both roles vacant. Minnesota's intestacy laws fill the beneficiary gap (your children inherit first, then parents, then siblings), but the personal representative vacancy forces the probate court to appoint someone — a process that costs time and money, and the court's choice may not be who you would have picked.

The ERISA Gap That Catches People

The automatic revocation under § 524.2-804 does not apply to employer-sponsored retirement plans and group life insurance policies governed by the federal Employee Retirement Income Security Act (ERISA). Under the preemption doctrine established in Egelhoff v. Egelhoff (2001), ERISA plans must pay whoever is named on the plan's beneficiary form, regardless of what state divorce law says.

If your 401(k), 403(b), or employer group life insurance still lists your ex-spouse as beneficiary, the plan administrator is legally required to pay them — even after your divorce, even if § 524.2-804 would otherwise revoke the designation. The U.S. Supreme Court confirmed this in Sveen v. Melin (2018), which upheld Minnesota's revocation statute for state-governed instruments but left the ERISA preemption intact.

The fix is straightforward but must be done manually: log in to your employer's benefits portal or contact HR and submit new beneficiary designation forms for every ERISA-governed plan. Name your intended beneficiary (a child, parent, sibling, or trust) and confirm the change is recorded.

What to Update: The Full List

Your Will

Draft a new will that names:

• A beneficiary (or beneficiaries) for your estate
• A personal representative to administer the estate
• A guardian for any minor children (this is the only legal instrument that names a guardian if something happens to both parents)

If you used a revocable living trust during the marriage, update the trust document as well — change the successor trustee and beneficiary designations to reflect your post-divorce intentions.

Statutory Short Form Power of Attorney

Minnesota's Statutory Short Form Power of Attorney (Minn. Stat. § 523.23) lets you name someone to handle your financial affairs if you become incapacitated. If your ex-spouse was your agent, that designation is now void under § 524.2-804.

Execute a new POA naming a trusted person — a parent, sibling, adult child, or close friend. The statutory short form is straightforward: it lists specific powers you can grant (real estate transactions, banking, tax filing, insurance, etc.), and you check the ones that apply.

The principal's signature must be acknowledged by a notary public; two witnesses are not required for the statutory short form. The document is effective immediately upon signing unless you specify a "springing" trigger (such as a physician's written determination of incapacity).

Health Care Directive

Minnesota's Health Care Directive (Minn. Stat. § 145C) combines a living will and a health care power of attorney in one document. It names a health care agent to make medical decisions if you cannot communicate, and it records your preferences for end-of-life care, organ donation, and treatment priorities.

If your ex-spouse was your health care agent, that appointment is revoked. You need to execute a new directive naming a new agent. Unlike the financial POA, a health care directive must be verified either by a notary public or by two witnesses; you do not need both.

Give a copy of your new directive to your primary care physician, your named health care agent, and any hospital where you receive regular treatment. Minnesota law requires health care providers to honor a properly executed directive.

When to Do This

Estate planning updates are not time-sensitive the way a driver's license (30-day deadline) or health insurance enrollment (60-day window) are. But postponing them creates real risk — if something happens to you before you update these documents, the automatic revocation leaves gaps that your family must navigate through probate court.

A practical approach: handle the time-sensitive agency updates first (Social Security, DVS, health insurance, bank accounts), then schedule the estate planning updates within the first 90 days after your decree is entered.

For the complete sequenced checklist — from the first-week agency updates through estate planning and pension transfers — see our Minnesota After-Divorce Checklist.

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