Divorce & Wills

As many of our clients and readers know, Barasch & McGarry continues to prepare free simple wills and health care proxies for all of our New York State 9/11 clients and all active FDNY members and their spouses. For those of you who have put off making a will, now is the time to stop procrastinating and take advantage of this free service!

Here is a little story about procrastination: Ron and Joy were married in 2007. In order to demonstrate their commitment to one another, in 2008 they both signed wills in which Joy bequeathed $20,000 to each of Ron’s three children from a prior marriage and Ron bequeathed $20,000 to each of Joy’s three children from a prior marriage. In 2009 they divorced and Joy remarried. Following Ron’s death in 2021, Joy’s sons learned that Ron had never revoked his will. They petitioned the Surrogate’s Court for their inheritance under Ron’s will.

Although New York State law provides that a divorce or legal separation revokes any revocable disposition of property made by a divorced individual to the former spouse in a will, this applies only to former spouses and not to family members of former spouses. Although Ron and Joy were only married for two years, and had been divorced for more than ten years, the surrogate court judge ruled that Joy’s children were entitled to $60,000 of Ron’s estate since he never revoked his prior will.

In order to avoid any issues, clients going through a divorce or separation should be updating their documents. Prior to a final divorce decree or judicial separation, however, the spouse cannot be disinherited as he or she has an “elective share” that can be claimed against the estate (equal to roughly one-third). A soon-to-be divorced individual should ensure that the former spouse, and family members of the former spouse, do not inherit a significant amount of his or her estate, and that he or she is removed on any other account, investment or life insurance policy.

Below is a list of items to be considered upon divorce:

• Execute new estate planning documents, including a Last Will and Testament, Health Care Proxy and Power of Attorney
• Update all beneficiary designations on assets such as life insurance policies, retirement accounts, pay-on-death bank accounts, pensions, and transfer-on-death brokerage accounts.
• Review trusts and seek legal advice on whether they can be amended.
• Re-title jointly held properties, including vehicles and real estate.
• Speak with family members who may have named the individual and his or her former spouse as beneficiaries and encourage them to review their documents.