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Estate Planning & Divorce

Once you are divorced, your former spouse is usually not entitled to inherit any money from you upon your death. But can you protect your assets from your soon to be ex-spouse during a divorce, should you die during your divorce proceedings? Assuming you have a Last Will and Testament, and you left assets to your then-beloved spouse to protect him or her in the event of your death, contrary to what you may think destroying your Will is not a solution here. Why? It is because under the New Jersey probate law, if you are married and die without a Will (which is what will happen if you destroy your Will without creating a new one), a large portion of your assets, possibly even all your assets (both marital and non-marital), will pass onto your surviving spouse.  Additionally, your surviving spouse will be entitled to be the Administrator of your estate.  If you are in the middle of a divorce or even contemplating a divorce, this will likely be the last thing you would want. So if you do not want the person you are divorcing to receive all your assets, creating a new Will gives you a much better control over where your assets should go. It also allows you to pick your own Executor.


But note that even with a new Will, you usually cannot completely cut out your spouse mid divorce.  Also, depending upon how far along you are in the process of your divorce, New Jersey’s Elective Share Statute may still allow your surviving spouse to claim up to 1/3 of your estate.  Because even though you may be divorcing, as long as you are still married at a time of your death, your spouse is still entitled to some share of your assets.  Even if your surviving spouse is unable to collect his or her elective share, the Court may then intervene if it thinks it would be inequitable to completely cut out your surviving spouse.  A new Will then, does not serve as a tool to completely cut off your spouse, but rather it can limit and specify as to what share and which of your assets your spouse can claim. New will still gives you more control over your own affairs, as opposed to relying on your old Will or the Probate.


In addition to writing a new Will, to further protect yourself you should consider adding certain provisions in your separation agreement whereby you and your spouse waive your right to claim the elective share.  You can also add provisions for any life insurance, retirement plans and educational savings accounts owned by either you or your spouse.


When drafting a new Will, keep in mind that your choice of trustee or guardian for your children might also be affected by your divorce.  For example, if you name a relative of your former spouse as a trustee, he or she may be ineligible to serve as a trustee of any trusts for your children unless clear instructions are provided.  You may also wish to revisit your guardianship designations to make sure that they are still appropriate given your current and changing circumstances.


Finally, do not forget to speak with your parents and siblings about their own estate planning documents.  If they have money passing to your spouse under the terms of their own Wills, or if you or your spouse are named as guardians, your family may wish to update their Wills as well to reflect their present wishes.