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Divorce: It’s Influence on Your Estate Planning

Making a will can be a time consuming process that involves the interest of a potentially large amount of people. One of these interests is that of the testator’s spouse. A surviving spouse is generally presumed to be the first heir to which asset distribution goes to in the event property or assets are not accounted for in the will. However, not all marriages work out and when this happens, the terms of distribution in your will can be greatly affected, depending on the state you live in.

New York Law For Wills

There are three scenarios for will distribution to a former spouse in the event of divorce: the divorce automatically revokes the entire will, it only revokes the testamentary provisions making gifts to your former spouse, or it does not affect your will at all. In New York, upon the final divorce decree, all provisions or bequests to your former spouse are revoked, if the will is still valid. If you are still legally married but your spouse has abandoned you up until the time of your passing, the court will also view this the same way as divorce, and disinherit the spouse.

Rights Revoked

A former spouse will not only be disinherited in the event of divorce, but also under New York law, any will provisions naming the former spouse as executor of the will, trustee of a trust, health care proxy or the person in charge of disposing of testator’s remains, are all consequently revoked. While these are automatic revocations, it is always a good idea to have a second document executed naming another individual as a way to cover all your bases and make sure those you seek to inherit receive their proceeds.

What Is Not Revoked

There are some situations in which you will have to go and manually change any vested interest given to the former spouse in order to disinherit him or her in the event of divorce. A divorce does not automatically terminate lifetime revocable trusts, and joint tenancies in property law; more importantly, it also does not terminate power of attorney named under General Obligations Law and the designation of a former spouse as a life insurance policy beneficiary if you have obtained life insurance. Thus, if you fail to revoke the former spouse’s rights as beneficiary, it will not matter if you have remarried or have gone through a bitter divorce proceeding, the former spouse will still receive the proceeds unless you actively seek making the change in the beneficiary interest.

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