What Happens to a Person’s Estate Planning Documents When They Divorce?
Article by Samantha Benadiba, Esq.
We often get questions about what happens to a person’s estate planning documents when they get divorced. Many people are not aware that New York has a “revocation on divorce” law which provides some protections to those who have gone through a divorce and have not updated their estate planning documents. The law generally provides that divorce revokes any revocable dispositions to a former spouse - unless expressly provided otherwise in a relevant document. Under the law, bequests to a former spouse in a Will, Revocable Trust, transfer of death (TOD) account or beneficiary designation on certain life insurance policies and retirement assets, are automatically revoked upon divorce. Further, the law also revokes the appointment of a former spouse as an Executor, Trustee, Agent under a Power of Attorney and Health Care Proxy. While on its face, this divorce revocation law appears to provide the protections most divorced individuals are looking for, a closer look at the law leaves some glaring estate planning issues which should be mentioned.
First, the divorce revocation law does not cover the amount of time between a couple’s separation and legal divorce. The law only applies once individuals have received a final judgment from the Court. While a couple may be living separately and waiting for the Court to finalize their divorce, they are still considered legally married and therefore, the law does not apply.
Next, the divorce revocation law does not revoke bequests to relatives of a former spouse, or their appointment as Executor.
In addition, it is important to note that the divorce revocation law does apply to Irrevocable Trusts, irrevocable dispositions or irrevocable fiduciary appointments. Therefore, it is imperative to consult with an estate planning attorney in order to determine if there are mechanisms which can be implemented in order to prevent a former spouse from receiving under an irrevocable instrument.
While New York State law does provide some protections to those who have gone through a divorce, it is not a substitute to proper estate planning. Seeking the counsel of an estate planning attorney and updating your documents should also be considered part of the planning process when considering or going through a divorce.
-Samantha Benadiba, Esq.