When our firm handles a divorce, we reference the client’s Last Will and Testament in the Divorce Settlement Agreement.
During divorce, many people worry about how their property will be distributed between them and their spouse at the end of the divorce. However, few consider how their property will be distributed in the event of their death before the divorce is finalized. There are two questions that everyone going through a divorce should be considering, but rarely do:
- “What happens if I die before my divorce is final?”
- “How can I make sure that my share of the property goes to the people that I want it to go to, rather than my future ex-spouse?”
We often tell clients that to best protect themselves, they should be meeting with Steven Adler, Esq., and planning for the remote possibility of death during or shortly after the divorce process is complete. Most people do not realize that if they die during the divorce process without properly planning for it, their future ex-spouse may simply get everything.
Failure to change your will either before or after divorce could cause serious complications.
If you don’t have a Will and you pass away during the divorce process, your future ex-spouse, still technically your spouse during the process, may inherit everything. Additionally, if you have a Will where you named your spouse as the beneficiary, and the divorce is not finalized, then your future ex-spouse will certainly inherit everything under the Will. Even if you disinherited your spouse after the divorce, if you failed to change the executor or executrix, there will be serious complications that will make it difficult for your children or other heirs to get the property distribution that you intended. Most people do not realize this, and fail to even consider it.
What is the spouse’s “elective share?”
Even if you do try to disinherit your future ex-spouse, he or she may still be entitled to part of your estate pursuant to New York Estate Powers and Trust Law, Section 5-1, which provides a “right of election.” The elective share is the greater of:
- certain cash or cash equivalents up to $25,000.00;
- one automobile up to $25,000.00 in value; and
- the greater of one-third of the net estate and $50,000.00.
When a will is probated, the only assets under the jurisdiction of the New York Surrogate’s Court are those assets owned solely by the decedent. However, the right of election applies to jointly owned assets, probate assets, and to other assets deemed testamentary substitutes. The statutes can be complicated and difficult to understand, which is why our firm works closely with Steven Adler, Esq., and our clients to minimize the amount of property that a future ex-spouse is entitled to in the event of a death during divorce.
If you are going through a divorce and fighting over assets, it would be a shame for your future ex-spouse to get everything.
In most cases, the spouse’s elective share is considerably less than the value of your entire probate estate. Accordingly, it is worthwhile to immediately change your will, even if it is temporary, because you will be decreasing the amount of assets that your estranged spouse will receive in the event you do not live through the divorce proceedings.
We are sensitive to the fact that our clients are splitting their property and income with their spouse during the divorce and after, making it very difficult for anyone to live the same lifestyle in divorce that they did in marriage. As a result of the foregoing and our close relationship with Steven Adler, Esq., his firm offers an exclusive program to our divorcing clients at a reduced price. Steven’s firm provides a streamlined will for divorcing spouses at approximately half the cost of a regular will, and then updates the Will and creates a full estate distribution plan post-divorce. This process helps people going through divorce protect their assets during the divorce, and helps them create a post-divorce plan to minimize liabilities and problems, while ultimately making sure that an ex-spouse doesn’t benefit accidentally or unintentionally.
How much would your divorcing spouse stand to inherit if you pass away?
Co-authored by: Jason Isaacson & Steve Adler