Estate planning is an extremely important aspect of divorce, yet most people tend to forget about it until they are reminded by their attorneys. However, even those remember are not quite sure how to proceed, since their estate may consist of numerous complex assets such as co-owned properties, pension plans and life insurance policies. Many divorcing spouses assume that if they have a Will, it's simply a matter of writing the other person out of it. Some people even assume that the mere filing of a divorce automatically negates a former spouse's right to their estate.
It's understandable why someone would make this assumption when you examine the state's Elective Share statute, which gives surviving spouses the right to one third of the decedent's estate, provided that they were living together at the time of the decedent's death. The statute further states that spouses must have cohabitated as man and wife, meaning that there is no judgment of divorce, or circumstances that would give rise to an action of divorce or annulment. Thus, it would stand to reason that were you living apart from your spouse, or had at least filed for divorce, your spouse would automatically lose his or her claim to a share of your estate.
In truth, the only thing that the Elective Share statute provides is protection for those who were left out of their spouse's will, or whose share of the estate is minimal. It doesn't actually negate your spouse's right to some portion of your estate in the event of a divorce, or pending divorce. In fact, while a divorce is pending, the courts always attempt to maintain the status quo of a marriage as much as possible. Even without court intervention, arrangements such as reciprocal wills, in which each spouse is designated as the other's beneficiary, do require a final judgment of divorce before a beneficiary designation can be revoked.
In addition, most spouses are each other's beneficiaries on life insurance policies, investment funds and retirement accounts. As a general rule, these types of designations cannot be changed until a divorce is final. For example, pensions and certain qualified retirement plans are protected under the Employee Retirement Income Security Act (ERISA), which forbids the changing or revocation of a spousal beneficiary designation during a divorce proceeding. You and your spouse can, however, give written consent for an alternate beneficiary designation, which may be possible if you are divorcing on good terms.
These guidelines may lead you to believe that estate planning should be put off until after the divorce, but it's actually very important to find out about your rights and options as soon as possible.. Depending on the complexity of your assets, your divorce attorney can recommend a qualified probate attorney, who can give you further guidance on how best to resolve your estate. If you have questions or concerns about modifying your estate during a divorce, please speak with the attorneys of Villani & DeLuca, P.C.