ESTATE PLANNING AND DIVORCE: WHAT YOU NEED TO KNOW

Going through a divorce can be a challenging experience, not just emotionally but also financially. Amid the whirlwind of emotions and legal procedures, it's crucial to remember to update your estate plan. This blog will guide you through the essential steps to ensure your assets are protected and upon your passing, will be distributed to your children and loved ones, rather than your ex-spouse. While you might handle some of these changes independently, its best to consult an experienced estate planning professional who can provide you with a comprehensive plan to fit your needs.

Untangling Financial Lives: Estate Planning During Divorce

Divorce is essentially about separating your financial life from your spouse's, and this includes your estate assets. 

Key questions to consider are:

• Is your spouse named as a beneficiary in your will?

• Have you designated your spouse on your retirement plan(s) or life insurance?

• Have you both decided on guardianship for your minor children in the event both of you are no longer able to raise the children?

All these aspects need a thorough review and likely changes.

Spousal Rights and Estate Planning in New York

Before jumping into the specifics of altering your estate plan, it's important to understand that without a will, your state's "intestate" laws will dictate how your assets will be distributed. If you're still legally married at the time you pass away, your spouse will have inheritance rights to some or all of your assets—clearly an unwelcome outcome during a divorce. Therefore, speak with an estate planning attorney as soon as you consider or start the divorce process. This will be crucial to keeping your assets out of your soon to be ex-spouses hands.

Your Settlement Agreement: Addressing Estate Plans

Most divorces are settled through negotiation, either via mediation or with lawyers, concluding in a Settlement Agreement. Here are some key estate planning areas to address with your divorce attorney to make sure they are included in your Settlement Agreement:

• Your Will: Both you and your spouse will likely waive rights to inherit from each other and from acting as each other's executor. Once agreed upon in a signed writing, you may want to review and modify your will or trusts.  But keep in mind that in New York, you cannot legally disinherit a spouse without this waiver of the spousal “right of election.”  If not done properly, your spouse can still inherit from you while the divorce is pending.  

• Guardianship of Minor Children: If you pass away while your children are minors, the surviving parent typically gains custody unless deemed unfit by the court. However, discussing and agreeing on an alternate guardian with your ex is advisable.

• Retirement Plan Beneficiaries: Retirement plans often bypass probate, directly passing to the named beneficiary (usually the spouse). Both spouses can consider renouncing this right in the Settlement Agreement. This is distinct from dividing the retirement accounts in the divorce.

• Life Insurance Beneficiaries: Similar to retirement plans, life insurance policies pass directly to the named beneficiary. Settlement agreements often maintain sufficient life insurance to meet child support obligations if the paying parent dies. Most divorce Settlement Agreements list the other parent as the beneficiary to cover future child support, but consider naming a trust with your preferred trustee to manage the money and provide for the children through the trust.

Updating Essential Documents Independently

Certain documents can be updated without your spouse's consent, such as:

• Health Care Proxy

• Living Will

• Power of Attorney

It's likely you don't want your soon-to-be-ex managing your bank accounts or making medical decisions for you. Designate new trusted individuals for these roles to ensure your wishes and interests are upheld.

Post-Divorce

After signing your Settlement Agreement or receiving a Judgment of Divorce, promptly update all estate planning documents to prevent your ex-spouse from inheriting assets meant for others. Consulting financial and legal experts specializing in divorce and estate planning can provide nuanced guidance, ensuring legal compliance and a comprehensive estate plan aligned with your new situation.

Estate planning during a divorce is vital to safeguarding your financial future and protecting your loved ones. By revisiting your estate plan, updating beneficiary designations, understanding spousal rights, and seeking professional advice, you can navigate the complexities of divorce while securing your assets and ensuring your wishes are respected. Failing to revise your estate plan could result in your ex-spouse inheriting from you or having legal authority over your life and health care decisions if you become incapacitated. Take proactive steps to protect your interests and consult a trusted estate planning attorney to create a robust plan, providing peace of mind during this transformative phase of life.

*This article was written and adapted from a co-authored blog with Joy Rosenthal, entitled: Rebuilding your Legacy: Updating your Estate Plan During and After a Divorce.

For more information about estate planning, feel free to reach out to Leslie Sultan, Esq.

About the Author

Leslie has been practicing law since 2009 and is the host of the estate planning podcast 'Legacy Purse'. She has a long history of representing family members struggling to inherit property and/or wealth from deceased family members through the Probate Courts. Knowing how time-consuming and expensive the probate process is, Leslie takes great pride in helping her clients learn how to plan and protect their families during their lives so they can avoid the probate court process and save their loved ones that additional grief (and expense).