IF YOU ARE DIVORCING, CHANGE YOUR WILL NOW
Many websites advising on what to think about when divorcing say you should be sure to change your will once it's all over. That's good advice, but it doesn't go far enough. Changing your will and other legal documents should be one of the very first things you do.
Putting it bluntly, if you have decided that you want this person out of your life, then you definitely want them out of your death. Which is to say, you don’t want them to inherit your property, to be the executor of your estate, or for your former in-laws to be trustees or guardians for your kids.
Divorce proceedings can take a long time - 2 years, 4 years, or more. Think of what might happen in during that time among your friends and family – births, deaths, graduations. One of the things that could happen is your own death. Or you could have a health emergency or some situation where you need another person to handle personal matters for you.
Rewriting your will, health care proxy and power of attorney is the first and simplest way to protect yourself from your ex’s involvement in your personal legal affairs.
A divorce can take 2-4 years from start to finish. Revising, or creating, these documents, can be done in 2-4 weeks. The best practice is to get it out of the way before all the work of the divorce gets started.
What the Law Provides
Let's start with two important provisions of New York law:
Once you are divorced, the law will disregard any provisions you have made for your former spouse to be a beneficiary or executor or trustee in your estate. (Estates, Powers and Trusts Law sec. 5-1.4).
If you die at any time that you are legally married, your legal spouse may claim and inherit one-third of your property, even if you have provided nothing for them in your will. (EPTL 5-1.1A) If you have no will, it’s even worse – the spouse will receive everything (or if you have kids, the spouse will receive the first $50,000 and half of the rest, with the kids dividing the other half).
Here are the implications of these laws:
Up until the moment the final divorce decree is filed, your spouse is legally your spouse – even if you are living apart, seeing other people and fighting in court. The legal revocation doesn't take effect until the final decree, and that could be years after the divorce proceedings begin. And if you have no will, then up until the filing of the final decree, your spouse will be the first in line to administer your estate. And even once you are finally divorced, any financial institution can still pay out to your ex unless they have been informed of the divorce. But you have the right at any time to name any person you want as your executor. If you name a friend, a sibling, a grown child, as your executor, your spouse will have no power over your estate.
If you don’t provide any inheritance for your spouse in your will, then he or she can still lay claim to a third of your property if you die before the divorce is final. But how much better to restrict their rights to one-third, rather than giving them everything. And if you provide nothing, then it's up to them to exercise the right to claim that one-third, which they might not manage to do. The same is true for your retirement accounts and any other accounts where you’ve named beneficiaries.
Risks During Your Life
Your death is not the only thing that could occur during the divorce process. You might fall ill, or might have some circumstance that keeps you from attending to your personal business.
Do you want your ex to make medical decisions for you if you're incapacitated? Do you want them to handle your finances under a Power of Attorney if you're unable to handle your own personal business?
Caring for Your Kids
Your personal legal documents also probably appoint people who would manage assets for your kids, or who could take custody of your kids, if both you and your ex are deceased or incapacitated.
In your existing will, you might have named your in-laws as trustees or guardians. These are roles that, obviously, go to the heart of your most important wishes and obligations. And they are roles that can last for years on end, shaping your kids’ lives from day to day. You can assert your current wishes simply by signing some new documents.
This Is Easy
Come talk to us and we’ll figure out what you need to do. We can get this done in just a couple of weeks.
Once you've decided to make a change in your life, make this one of the first items on your agenda. The divorce may still lie ahead, but this will be one aspect of your life that is settled and secure.
Ron L. Meyers
Ron Meyers graduated from Columbia University in 1992, from Harvard Law School in 1999, and has been practicing law in New York City since 2000. He worked for several years in major law firms on commercial real estate matters, such as the World Trade Center, the creation of the High Line and the redevelopment of Times Square. He turned to private-client work in 2007, opening his own practice in 2009, where has now served over 1,000 clients. He and his team handle estate planning, probate and residential real estate matters for individuals, couples, and families of all kinds.