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D-I-V-O-R-C-E & New York Estate Planning

{Read in 4 Minutes} As a Trusts and Estates attorney, I don’t handle matrimonial cases. However, a good amount of my clients tend to be divorced (or they are in the process of getting divorced, etc.). Because of this, it’s important to understand what effect a divorce would have on one’s estate planning documents. And is it necessary to update your Will if you get divorced?

In the past, I’ve written an article on whether or not it’s necessary for New Yorkers to update their Wills when they get married. However, let me deal with the flip side of that. Not only do people get married, sometimes people get divorced. I thought it would be helpful to explore what effect a divorce would have on one’s estate plan and whether or not one needs to update their Will when they get divorced. Let’s look at some of the moving parts.

In general, New York statutes provide that any benefits made for their now ex-spouse, in a Will executed prior to the divorce, will lapse. This would include nomination as an Executor, a Trustee of a Testamentary Trust, a beneficiary, etc. This would also include the loss of certain rights that spouses have just by virtue of being the surviving spouse.

Is it a good idea to update your Will if you get divorced? The answer here, in my opinion, is yes. As those of you who have followed my blog for a while know I do not believe that a client needs to update their Will just because a certain amount of time has passed. And frankly, there are some clients who don’t necessarily even need a Will at all (because the laws of intestacy will sometimes accomplish the same thing).

However, here, I think it’s worthwhile to update your Will once the divorce is complete. Why? What’s the difference here between this and other situations? To me, I’d really want the parties who are named in the Will, whether they are Executors, beneficiaries, etc., to be the parties whom you want to actually inherit or serve as a fiduciary. I never want a situation where I’m going to offer a Will for probate at the Surrogate’s Court, and there are parties who are listed in the Petition who are disqualified for some external reason, such as a divorce. The Surrogate’s Court is normally very quick and efficient, however, having a living beneficiary or fiduciary named in the Will that is disqualified as a matter of law gives that person the right to Notice and the opportunity to be heard in the Court. This means that the Court will likely issue a Citation asking them to show cause for why the Court should not disallow their inheritance or fiduciary role. Even though the laws are clear on this matter, they still have the opportunity to be heard and they can still appear with an attorney that is potentially costing the Estate some significant legal fees and delaying the probate process.

Please note that the rules concerning divorce only apply to couples who were married and subsequently divorced. There is no such default or presumption in the law for couples who separate without going through (or even starting) the divorce proceeding, just as there is no such protection for couples who have made a decision never to get married and then break up. It’s also a really excellent idea to update your beneficiary designation forms.

Taking the time to do this will make everything go much more smoothly at the end of the day. And believe me, your Executors and beneficiaries will thank you.

For more information on this topic, please contact me.

Thomas Sciacca

www.sciaccalaw.com
[email protected]
(212) 495-0317