When Should You Re-Write Your Will
By: J. Mahserjian & W. Clark
If you are contemplating, or in the process of, divorcing your spouse, it is crucial that you either revise your existing will, or have your attorney prepare a new one for you.
If you are contemplating, or in the process of, divorcing your spouse, it is crucial that you either revise your existing will, or have your attorney prepare a new one for you. If you already have a will, it is likely that you left all, or a substantial portion, of your property to your spouse. If you do not do anything to change your Will while you are going through your Divorce or Separation process, your Will will continue to govern how your estate is settled in the event of your death.
Some clients have substantial financial holdings that include real estate, life insurance, brokerage accounts, pension funds, cash, and so forth. They never intended that all of their property would go to their spouse if they died during the Separation or Divorce process and they would be shocked to know that that could occur. In fact, the overwhelming majority of our clients ask about changing their Wills only after they have become Divorced or signed a Separation Agreement.
Legally if you die before completing a Separation Agreement or obtaining a Judgment of Divorce and you have a will leaving all or some of your assets to your spouse, your spouse will inherit everything that they are supposed to get under that Will. Even if you have already started a trial to decide your Divorce issues, the Will will control how the property is divided. In New York, a death terminates a Divorce action without a Divorce being granted. The trial will be over and no Divorce can be granted. As a result, the estate will be administered as if the parties had never even begun a Divorce action.
A fully executed Separation Agreement usually terminates estate rights. Most attorneys include a lengthy paragraph where both parties waive their estate rights and their rights under the each other's Wills in those Agreements. A Separation Agreement is only effective once it is signed. If the Agreement has been fully negotiated and is ready to sign when one of the parties dies, the Agreement will have no effect.
The estate will be administered as if the parties had never even negotiated an Agreement. If the Will had been changed before the Separation or Divorce process had been started, the end result would be different.
If you change your will during the Separation or Divorce process, those changes will dictate what your spouse inherits in the event of your death. If you would like to change what your spouse inherits if you die, then you must change your will. If you have commenced a Divorce or Separation Action, or are contemplating doing so, for your own protection, you must meet with a lawyer to revise your existing Will or draft a new one for you.
Making a new Will cannot change the fact that your spouse has what is called an Elective Share in New York State. An Elective Share is simply the right to claim a percentage of a spouse's estate. Many of our clients have Wills leaving their entire estate to their spouse in the event of their death. Those Wills can and should be changed while the Divorce or Separation process is ongoing. If the Will is changed and a death does occur, the only thing that the other spouse will get is the Elective Share and not the whole estate.
What is an Elective Share? In New York State an Elective Share is the right to inherit a percentage of your spouses' estate. You cannot completely disinherit your spouse in New York. The Elective Share percentage is different depending upon whether you have children. In general, if the parties have children, the spouses' Elective Share is equal to one third of the net estate. If the parties do not have children, the Elective Share is equal to one half of the net estate. The net estate is the amount left after paying for funeral expenses, and any outstanding debts or bills. One third or one half is certainly a lot less than the whole estate and most of our clients would prefer that only the Elective Share be available to the spouse that they are at war with.
The alternatives available to you while you are negotiating a Separation Agreement or litigating a Divorce Action are quite clear. If you have a Will that leaves everything to your spouse and you do nothing, your death will result in your entire estate being left to your spouse. Most of our clients do not want that to happen. The only way to change that result is to write a new Will immediately and to disinherit your spouse except for their entitlement to their Elective Share.
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This article was posted on December 9, 2002
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