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  • Writer's pictureAlan D. Feller, Esq.

How Does A Divorce Affect my Will?

We make Wills to protect our legacies and show our loved ones that their future is important to us. Ending a marriage not only marks the end of a family unit, it also alters the direction of one’s legacy. Divorce has the legal effect of removing an ex-spouse from a Will as both an Executrix and beneficiary. Legally, the ex-spouse is treated as if they predeceased the creator of the Will.

Practically speaking, Wills should have contingent beneficiaries and alternate executors named in the document. Following a divorce, simple Wills that lack back-ups may trigger an estate plan that was not wholly anticipated and allow for the appointment of an Executor that you did not want. In the absence of a clear Residuary Clause with named contingent beneficiaries, simple wills that leave everything to an ex-spouse may end up leaving estate assets to a class of your closest living blood relatives as defined under New York law. A sibling that you no longer speak to may inherit a share of your estate.

Even if the creator of the Will was mindful about where the estate assets go should their spouse predecease them, many forget to name alternate fiduciaries or name alternate fiduciaries that are older than themselves. With the divorced spouse being legally removed from the Will and no viable alternative executor appointed, Surrogate’s Court has the discretion to allow a distributee (close blood family member) to assume the role of a fiduciary for your Will and Estate.

Remember that sibling that you no longer speak to. If they petition the Court to become your estate’s fiduciary because your Will only listed an ex-spouse as an Executrix, then that sibling may be in charge of your estate and receive a commission out of your estate funds.

If there are minor children then Guardianship provisions would still remain in effect because those provisions relate to both spouses having predeceased and the divorce would not impact this scenario.

Things get interesting when we review Trusts, both under a Will and as a reference to a Pour Over Will. Special Needs Trusts for a disabled child created under a Will often name the other spouse as Trustee. A divorce would remove that ex-spouse as Trustee and elevate the alternate Trustee. Special Needs Trusts or other Irrevocable Trusts created outside a Will would not have a divorced spouse automatically removed from that Trust. Pour over Wills directing all probate assets to a separately created Irrevocable Trust may have an ex-spouse removed from just the Will itself and not the related Trust.

To avoid confusion, divorced spouses may clear up inconsistencies through properly drawn separation agreements that address estate concerns. Making a new Will is an intelligent decision in light of the issues created following a divorce. Reach out to the professionals at Sloan and Feller to find out more information on divorce and estate planning.



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