Divorce, a Handwritten Scratch-Out, and a Stale 401(k) Beneficiary
Walter executed a will in 2019 leaving his entire estate to his wife, Elaine, if she survived him, and otherwise to his two children from a prior marriage, Tess and Owen, in equal shares. The will was signed by Walter and witnessed by Elaine and a neighbor. In 2022, Walter and Elaine divorced; their settlement agreement, incorporated into the divorce decree, contained mutual waivers of 'all rights in the other's estate.' In 2023, Walter crossed out Elaine's name on his copy of the will, wrote 'divorced - everything to Tess' beside it, and signed and dated the change; no one witnessed it. Walter died in 2024. His probate estate is $1.2 million. His 401(k), worth $500,000, still names Elaine as beneficiary, and the plan has received no QDRO and no change of beneficiary. Elaine claims the 401(k) and an elective share of the probate estate. Tess claims everything; Owen claims half.
1. What is the effect of the divorce and of Walter's handwritten change on the will?
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The 2023 handwritten change is ineffective as a testamentary act. An alteration to an executed will must itself be executed with the required formalities - signature plus two attesting witnesses in this jurisdiction - and nothing was witnessed. The document also cannot stand as a holographic will, because holographic wills are not recognized here.
The divorce, however, does part of the work by operation of law. Under the divorce-revocation rule, a final decree of divorce revokes every provision in a will for the former spouse, and Elaine is treated as having predeceased Walter for purposes of the will. That triggers the will's substitution clause: the residue passes to Tess and Owen in equal shares.
The handwritten 'everything to Tess' cannot be given effect as incorporation by reference, as a codicil, or as an act of independent significance. The outcome is Tess takes half and Owen takes half of the probate estate, and Elaine takes nothing under the will.
2. Who receives the $500,000 401(k), and why?
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Elaine does. The 401(k) is a nonprobate asset that passes according to the plan documents, not the will. Under Kennedy v. Plan Administrator for the DuPont Savings & Investment Plan, the plan administrator must follow the plan's beneficiary designation, and a divorce decree or settlement agreement does not override that designation unless it qualifies as a QDRO. No QDRO was submitted here, and Walter never filed a change of beneficiary.
ERISA preemption reinforces the result: the state divorce-revocation statute that strips Elaine from the will does not reach an ERISA-covered retirement plan. The one caveat worth checking is whether the plan itself contains an automatic revocation-on-divorce provision, which would change the answer; absent such a provision, the plan pays Elaine.
Tess's remedy, if any, is a breach-of-contract action against Elaine for violating the settlement agreement's waiver - not a claim against the plan or the estate.
3. Should Elaine's elective-share claim succeed?
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No, and it fails on two independent grounds. First, the settlement agreement waived 'all rights in the other's estate,' and a written waiver of the elective share, incorporated into a divorce decree, is enforceable against the surviving spouse. Elaine gave up the share when she signed the agreement, and she cannot reclaim it now.
Second, the elective share reaches only the probate estate. The 401(k) passed by beneficiary designation outside probate and would not be drawn into the share in a jurisdiction without an augmented-estate statute. Even if the waiver were unenforceable, Elaine would be entitled only to a statutory fraction of the $1.2 million probate estate, not to the retirement account.
The combined effect is that Elaine keeps the 401(k) and takes nothing from the probate estate.