Wills and Divorce
Generally, the last thing anyone wants to do following the completion of a divorce is seek advice from another attorney. Nevertheless, reevaluation in this regard following the termination of a marriage is imperative. Estate planning post divorce is necessarily different than it had been during the marriage.
Discussions with a wills and estate attorney who you trust is important during the divorce process. Many states have different laws regarding the distribution of assets for estate purposes which regulate how a spouse can inherit. In New York, a spouse can not be disinherited and retains his right to inherit from his partner’s estate until the marriage is fully and finally dissolved. Essentially, any changes in a will which limit your spouse’s rights during the divorce proceeding will not be effective. Since the laws in other states may vary, I recommend a discussion with a trusts and estates attorney whom you trust. Regardless of the applicable state laws, you might want to confer with a lawyer regarding your will during the divorce process in order to determine the steps you can take to protect yourself and your heirs from your spouse.
If a spouse dies intestate, or without a will, prior to the end of a marriage, or before the divorce proceeding has been finalized, the surviving partner is entitled to the entire estate if there are no children. Should children be involved, the surviving spouse will be entitled to the first $50,000 and half of the remainder of the estate after the deduction of expenses, debts and taxes paid by the estate. The children will be entitled to the remaining half of the estate. On the other hand, where a will is involved the surviving spouse is entitled to inherit the greater of $50,000 or 1/3 of the estate.
Once a divorce has been finalized, any gifts made to an ex spouse in a will are no longer valid unless the document specifically states that the inheritances should remain in effect. The will itself will remain effective however those provisions dealing with an ex spouse will lose their validity. Essentially ex spouse’s lose their rights to inherit once a divorce has been finalized. Bequests made to an ex spouse will generally be given to the person named in the will as inheriting the remainder of the estate if there are no provisions in the alternative. Since this might not be what you want, changing your will post divorce is the better alternative. Although an ex spouse loses his right to inherit post divorce even in a situation where no will exists, it is always better to have the proper estate planning documents in place especially if children are involved. Clear planning to protect your property is always beneficial.
The rules which invalidate gifts to ex spouses in a will do not apply to trusts, insurance policies, retirement plans or instruments such as living wills. Therefor these must be changed following the finalization of a divorce in order to prevent an ex spouse from receiving benefits.
A divorce changes all aspects of your economic life, including your estate. Change and reevaluation is necessary. In order to make the appropriate decisions and protect your estate, a conversation with a trusts and estate attorney is recommended.