Does a Divorce Decree Override a Last Will and Testament?

Question:
My mom was divorced about 10 years ago, in the divorce decree it stated that my brother and I would receive 50% of investments and retirement accounts if my father died. If his will states otherwise and gives more money to my step mother, is this legal? Which is the controlling document. My mother and father were divorced in New York, and my father lives in Virginia now.

Answer:
You and your brother definitely need legal advice on this matter. There are many variables in a case like this which could change the outcome. The most important variable, it would seem, is the language of the divorce settlement agreement and the choice of law clause (is the agreement to be constued according to New York law).

That said, if the settlement agreement specifically gives you and your brother an interest in his estate, then you may have a cause of action against his estate. Without seeing the documents and knowing what State's laws end up being applicable, and assuming you and your brother are not minors, it is difficult to imagine that you and your brother are parties that would have standing to bring an action against your father's estate. It is possible, but you need someone to look into this in much more detail. To answer your original question specifically, an obligation in a contract (like a divorce decree) does not "trump" the terms of the will, however if the terms of the contract are enforceable on the decedent and his estate, then, in this case, you and your brother would likely be treated as creditors of the estate, and receive assets through a settlement with the estate or by order of a Court if you sued the executor.

I hope that helps give you direction. I cannot emphasize enough the need for you to seek competent legal advice regarding your situation. There are many variables that impact your situation. Ethically, I must remind you that no attorney-client relationship is established by this communicatino. This is not intended to be legal advice but is general advice to seek further legal advice. If you do not know an attorney in Salem who can help you, the Virginia State Bar lawyer referral service is available to help you find a qualified attorney.

Best of luck.