Many couples realize they should update their will and beneficiary designations after getting a divorce. Divorcing parties don’t think about making these revisions prior to or during a divorce action and, yet, we strongly encourage them to do so.
Here is the issue. If one of the spouses dies during the divorce proceeding, the underlying legal action abates as a matter of law. The divorce process itself stops automatically. Absent a court order or a signed stipulation or agreement between the parties regarding the division of their assets and liabilities, all property passes as though the divorce action was never started. Since most couples would prefer not to leave their assets to someone they no longer want to be married to, we strongly encourage those considering divorce to draft or revise their will once they decide to divorce their spouse.
A will controls the disposition of your property upon your death. If your will directed that everything be left to your spouse, and you die during the divorce action, your surviving spouse gets what is stated in the Will – notwithstanding the divorce action. Alternatively, where there is no will, how much of your estate your spouse gets depends on whether you have children. If you had no will and no children, 100% of your estate is transferred to your surviving spouse as a matter of law. If you did not have a will, but you did have children, 50% of your estate plus $50,000.00 goes to your spouse, as a matter of law. The remainder of your estate goes to your children.
By drafting or revising your will, you can limit your spouse’s share to no more than one-third of your estate. Notwithstanding automatic orders which go into effect when a divorce action is started, the parties are allowed to revise their wills as they deem appropriate because New York law gives the surviving spouse a legal right to one-third of the value of the decedent spouse’s estate unless he or she waives that right in an antenuptial agreement.
If you are considering separation or divorce from your spouse, please contact an experienced attorney at our firm who understand often overlooked details that are important to consider in the event you are considering divorcing your spouse.
