Trusts, Wills, and Divorce: What New York Couples Should Know

Wills and divorce in New York: advice for those undoing their I Do’s

Estate planning is most visible in people’s lives at high points and low points, from celebratory occasions like marriage, buying a home, bringing home a new child, and securing a more lucrative position at work to the struggles of death, illness, and divorce. We plan for joyful and painful changes alike.

For many couples dealing with wills and divorce, New York estate law (not to mention divorce law) is new territory. Like first-time parents, first-time divorcees are so overwhelmed with the emotional realities that the financial and legal complications can take a backseat in terms of priorities.

The intersection of wills and divorce, in New York and other states, does not exist completely within either family law or estate law. Most likely, you will want a divorce lawyer to handle your divorce, and an estate lawyer to handle your will and any documents that name your soon-to-be-ex-spouse as the beneficiary.

There are so many parts of a person’s life that require changes to their wills in a divorce. New York Attorney Jules Haas offers the following checklist for individuals who are considering, currently undergoing, or have just completed the process of divorce.

New York will and divorce checklist: Five questions to ask
  1. Have I reviewed and, where needed, changed all the beneficiary designations in my insurance policies and retirement accounts? Pension, Individual Retirement Account, 401K, etc.?
  2. Have I reviewed all my estate planning documents (wills, trusts, etc.)?
  3. Have I named short-term and long-term guardians for our children in the event that I am incapacitated or deceased? Do I need to make any changes to those selections?
  4. Have I named a trustee to ensure that everything I leave to my children goes to my children (and not, by an omission, to my ex-spouse and their future spouse and children)?
  5. Have I chosen a new person to entrust with Power of Attorney in my living will?
Wills, divorce, New York law and timing: what you can do before, during, and after the divorce

The time at which you make these changes influences how much you can do. Divorce is not always foreseeable for both parties involved, so you may not have the opportunity to make these changes before the divorce begins. As Jules wrote in response to the April 2011 Forbes article, “Should I Disinherit My Spouse?”

Once a divorce is finalized, you should immediately update your Will and other estate plans if you have not already done so. In fact, in an ideal world, you should update such documents before even filing for divorce. This includes updating medical directives and a financial power of attorney.

Selecting new beneficiaries for life insurance policies and retirement accounts can also be done at this time -- though some require the consent of a spouse and will have to wait until after a divorce is finalized.

So though it may be ideal to make these changes before the divorce, life does not always provide the ideal amount of time. You may want to prioritize according to which problems seem more likely to occur. For example, if you are twenty years away from retirement, changing beneficiaries on your pension and IRA may not be as important as updating your Power of Attorney—especially if your spouse currently has PoA, giving them access to all of your accounts.

If the specifics of New York wills and divorce laws have suddenly become relevant to your life, or you feel that they may soon, contact Jules Haas for a free consultation about your best options for protecting your assets and building a sustainable financial future for you and your changing family.

New York estate lawyer Jules Haas will help you update your documents so that your assets go to the person to whom you want them to—not the person you wanted them to go to ten years ago.

New York City Probate Attorney Jules Martin Haas handles all types of probate cases, including wills and living trusts, estate planning, estate settlement, advanced directives and guardianship matters. Please call me at (212) 355-2575 for a free consultation to discuss your rights.