In many cases, a divorce is a traumatic experience for both parties. Usually, neither party has given any thought to the unintended consequences of death or disability during divorce. Until there is a final decree or judgment of separation or divorce, each party remains the spouse of the other.
Upon the death of one party, and without proper planning, the surviving spouse maintains all inheritance rights, whether by Last Will and Testament (“Will”), Revocable Trust or intestacy (meaning you have no Will). Moreover, all beneficiary designations, transfer on death accounts, fiduciary appointments (such as agents under a power of attorney, executors in a Will, trustees of a trust and health care agents under a health care proxy) remain intact until the divorce is complete.
None of us know when we will die or become disabled, but if it happens during the pendency of a divorce, your spouse may receive a windfall and/or be in a position to make your financial and medical decisions. To prevent this from happening, you must follow these instructions.
First, it is imperative that you meet with an elder law and estate planning attorney to redraft your Will or Revocable Trust to disinherit your spouse to the fullest extent permissible under New York State law. In New York, a surviving spouse is statutorily entitled to receive a portion of your estate. This is referred to as the elective share and is equal to the greater of one-third of your estate or $50,000.00. By changing your estate plan, you can redirect some, not all, of your assets to others, such as your children.
Unfortunately, upon the commencement of a divorce, the Court will issue an Order restraining the parties from changing the ownership of their assets. Your Will only pertains to assets in your individual name, with no joint owner or beneficiary designation, and your Revocable Trust only covers assets within it. Thus, these would be the assets that you can redirect. You will not be able to redirect jointly owned assets or assets that have beneficiary designations.
Another reason to redraft is to change your executors, trustees and guardians. If you die, you most likely do not want your spouse administering your estate. If you have minor children, there are opportunities to appoint someone other than your spouse as guardian of your minor children’s property. It is important to consider a trust for your minor children at this point as well. You generally cannot remove your spouse as guardian of the children’s person.
Second, you must remove your spouse as agent under your power of attorney. I am aware of cases where a divorcee spouse continued to use a power of attorney in the face of a pending divorce proceeding to manage assets subject to the divorce. If you lose your capacity during the pendency of the divorce, you need a trusted person who can continue the divorce proceeding and also ensure that your financial matters are handled properly.
Third, and probably the most sensitive topic, if you don’t want your spouse making medical decisions on your behalf, redraft your health care proxy. Depending on the level of animosity in the divorce, you may be giving your spouse the opportunity he/she has been waiting for!
The above planning recommendations should be addressed shortly after the commencement of a divorce proceeding. If you do not have existing documents, then you need to prepare them.
Perhaps you made it through a divorce and never updated your estate plan or have no estate plan at all. A divorce necessitates the preparation of an estate plan, especially where children are involved. If you have an existing plan that was never updated during the pendency of the divorce, it is important to note that while the concern of a spouse unintentionally inheriting property or acting as a fiduciary does not exist, a divorce does not revoke any dispositions or appointments you made in favor of your spouse’s relatives such as an in-law.
Lastly, you cannot neglect beneficiary designations. After your divorce, you most likely will need to redo your beneficiary designations to match your estate planning goals and objectives and any obligations under the divorce decree. The preparation of customized beneficiary designation forms coincides with the drafting of a new estate plan.