Will a Divorce Affect My Last Will and Testament?

New York divorce lawyerAfter an individual executes a Last Will and Testament, there may be changes in their life that could affect the way their assets are distributed under their last will and testament. One of the more common changes that may affect a Will is a divorce. A divorce can be an overwhelming experience, and often times, people do not think about the important estate planning implications that a divorce may have.

A divorce will only affect an individual’s Last Will and Testament if it was executed while the individual was still married. In New York this means that the will was in writing, signed or acknowledged at the end, and witnessed by two individuals who are not beneficiaries. However, if the will is executed after the divorce, and you choose to leave assets to your estranged spouse, the following will not apply.

In New York, a Will in which you leave assets to your divorced spouse will remain valid even after you divorce; however, any provisions that specifically benefit your spouse will be voided. In this case, you do not have to amend your Will to void these distributions as they are void as a matter of law. For instance, if you left your entire estate to your estranged spouse, and left your children as alternate beneficiaries, the Last Will and Testament will continue to be valid, however the provision to your former spouse will be voided. Therefore, the estate will pass to your children.

New York law has a protection to prevent individuals from disinheriting a spouse under most circumstances. This includes if you explicitly state in the Will you choose to disinherit your spouse. Referred to as the elective share, the statute gives the surviving spouse a “right of election” which is an automatic right to a certain portion of your estate if you are still married at the time of death. The right of election entitles your spouse to the greater of $50,000 or one-third of your net estate (including assets that would pass outside of probate). This right can be eliminated through the use of a separation agreement, and is automatically barred with a divorce.

Some people may wonder if a separation has the same legal affect as a divorce. In New York, a separation does not have the same legal effect on a Last Will and Testament. The estranged spouse is still entitled to any bequest in your will, until a formal decree of separation explicitly terminates that right. In this instance, it is important to amend your will accordingly if you choose to do so.

Another important estate planning implication is that a divorce decree has no impact on the appointment of your ex-spouse’s family or friends as an agent, a fiduciary, a guardian, or designated beneficiaries. For instance, if your Will appoints your ex-spouse’s brother to be the guardian of your minor children, it remains valid. Similarly, if you leave assets to your ex-spouse’s nieces and nephews, the disposition will remain intact. Again, this is another part of your will that should be reviewed upon divorce.

When first executing your will, you should be sure to name alternate beneficiaries. A failure to do so will result in your assets intended for your former spouse to be placed in the “probate” of your estate. This would require an estate administration or probate proceeding before the assets are able to be passed to your loved ones. For instance, if you leave your estate to your former spouse and fail to name alternate beneficiaries, your estate will be the subject of a court proceeding to determine if it will pass to your family.

Going through a divorce can be a stressful process. Seeking help from an attorney knowledgeable in estate planning can help you plan for any future events, however unlikely. Additionally, if you seek to amend your will, an estate planning attorney can confirm your estate plan conforms to your current wishes. Contact the experienced attorneys at Blodnick Fazio P.C. today at (516) 280-7105 to arrange a free consultation.

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