Montana law does some of this work for you. When a marriage ends in divorce (a dissolution) or annulment, MCA § 72-2-814 automatically revokes many gifts and appointments that favor a former spouse in documents you signed before the divorce. But the statute has exceptions, federal law overrides it for some employer plans, and it only removes a name. It does not decide who should take that person's place. This article explains what is automatic and what is not. It is part of our Montana Divorce Guide.
One thing up front: A&M Law is a family law firm and does not practice estate planning or probate. For a new will, trust, or power of attorney, see an estate planning lawyer.
What Montana Law Revokes Automatically
The statute applies to a "governing instrument" signed by the divorced person before the divorce. Montana's probate code defines that term broadly. It includes a deed, will, trust, insurance or annuity policy, account with a pay-on-death (POD) designation, security registered in transfer-on-death (TOD) form, a pension, profit-sharing, retirement, or similar benefit plan, and a power of attorney (MCA § 72-1-103).
Unless an exception applies, the divorce revokes any revocable:
- disposition or appointment of property to the former spouse, or to a relative of the former spouse;
- provision giving the former spouse or a relative of the former spouse a power of appointment; and
- nomination of the former spouse or a relative of the former spouse to serve in a fiduciary or representative capacity, "including a personal representative, executor, trustee, conservator, agent, or guardian" (MCA § 72-2-814(2)(a)).
The document is then read as if the former spouse and those relatives had disclaimed the gift or, for a fiduciary nomination, had died immediately before the divorce (MCA § 72-2-814(4)). A "relative of the former spouse" means someone related to your former spouse by blood, adoption, or marriage who is no longer related to you after the divorce (MCA § 72-2-814(1)(e)). A stepchild you did not adopt can fall in that group, which surprises people who meant to provide for one.
| Document or asset | Effect of divorce | Source |
|---|---|---|
| Gift to your former spouse in your will or revocable trust | Revoked by the divorce, unless an exception applies | § 72-2-814(2)(a)(i) |
| Gift to a relative of your former spouse (a stepchild or in-law who is no longer related to you) | Also revoked | § 72-2-814(1)(e), (2)(a)(i) |
| Former spouse named as personal representative, trustee, agent, conservator, or guardian | Nomination revoked | § 72-2-814(2)(a)(iii) |
| Life insurance, POD account, or TOD registration naming your former spouse | Revoked if the designation was revocable, unless an exception applies | §§ 72-1-103, 72-2-814(2)(a)(i) |
| Property held as joint tenants with right of survivorship | Severed; becomes a tenancy in common | § 72-2-814(2)(b) |
| Montana public retirement system (Title 19) benefits | Not covered by the statute | § 72-2-814(2) |
| Employer plan governed by federal ERISA law | State revocation may not apply; the plan may pay the named beneficiary | Egelhoff v. Egelhoff (2001) |
Joint Tenancy Is Severed
If you and your former spouse still hold property as joint tenants with the right of survivorship at the time of the divorce, the divorce "severs the interests of the former spouses" and turns them into tenancies in common (MCA § 72-2-814(2)(b)). In practical terms, if one of you dies before the property is retitled, the survivor does not automatically take the whole thing. The deceased owner's share passes through that person's estate.
This is a backstop, not a substitute for carrying out the decree. The statute protects third parties who rely on the recorded title unless a writing declaring the severance has been recorded (MCA § 72-2-814(3)). Record the deed the decree calls for. See transferring the house and refinancing.
What the Statute Does Not Reach
The revocation rule opens with its own exceptions. It applies "except as to a retirement system established in Title 19 or as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate" (MCA § 72-2-814(2)). So:
- Montana public pensions. Title 19 covers the state's public employee retirement systems. Beneficiary designations there are outside this statute. See Montana public pensions in divorce.
- Your decree or settlement. If the decree orders you to keep your former spouse as beneficiary of a life insurance policy, for example to secure maintenance or child support, that court order controls. See life insurance and beneficiaries in divorce.
- Irrevocable designations. The statute reaches only what the divorced person alone had the power to cancel (MCA § 72-2-814(1)(f)).
- Documents signed after the divorce. If you name your former spouse again after the decree, that choice stands.
- Legal separation. A decree of separation that does not end the marriage is not a divorce for this purpose (MCA § 72-2-814(1)(b)).
One more quirk: if you remarry your former spouse, provisions revoked solely by this statute are revived (MCA § 72-2-814(5)).
The Federal Problem: Employer Plans
Retirement plans and group life insurance policies offered through private employers may be governed by the federal law known as ERISA. In Egelhoff v. Egelhoff, 532 U.S. 141 (2001), the U.S. Supreme Court considered a Washington statute that, like Montana's, automatically revoked a spouse's beneficiary designation on divorce. The Court held that ERISA pre-empts such a statute "to the extent it applies to ERISA plans." In that case the former spouse was still the listed beneficiary of an employer life insurance policy and pension when the employee died just over two months after the divorce.
Montana's statute has a fallback for this. If federal law pre-empts the section, a person who received a benefit, not for value, that they would not have been entitled to under the statute is obligated to return it or is personally liable for its value to the person who would otherwise have been entitled (MCA § 72-2-814(8)(b)). Whether that fallback itself survives federal pre-emption in a given case is not something the statute can settle. In either event it means a claim against the former spouse after a death, not a clean payout. The simple fix is to file a new beneficiary form with the plan.
Why Payors Are Protected, and Why That Matters to You
An insurer, bank, or other payor is not liable for paying the person named in the document before it receives written notice of the divorce, and it has no duty to ask whether the marriage is still intact (MCA § 72-2-814(7)(a)). If a payor pays your former spouse because nobody told it otherwise, your family's remedy is against the former spouse, not the company. Again, the cure is to change the form while you are alive.
What to Do, and When
During the case,leave beneficiary designations alone unless the court or your spouse agrees in writing. The automatic economic restraining order restrains both parties from "changing or in any manner altering the beneficiary designation on any life insurance policies" or on any other account or asset, and requires notice filed with the court at least 14 days before a proposed revocation of a nonprobate transfer (MCA § 40-4-126). The order's definition of a nonprobate transfer excludes a will, but ask an estate planning lawyer before signing a new one while the case is pending.
After the decree, go through this list with the decree in front of you, so you do not undo something it requires:
- will and any trust;
- financial and health care powers of attorney;
- life insurance, including coverage through work;
- retirement accounts, IRAs, and annuities;
- bank and brokerage accounts with POD or TOD designations; and
- guardian nominations for minor children.
If you have minor children, think about who would manage money left to them. Naming a child directly on a beneficiary form raises its own questions that an estate planning lawyer can answer. For the rest of the post-decree list, see the after the divorce checklist.
This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal or estate planning advice about your specific case.