When our firm handles a divorce, we reference the client’s Last Will
and Testament in the Divorce Settlement Agreement.
During divorce, many people worry about how their property will be distributed
between them and their spouse at the end of the divorce. However, few
consider how their property will be distributed in the event of their
death before the divorce is finalized. There are two questions that everyone
going through a divorce should be considering, but rarely do:
- “What happens if I die before my divorce is final?”
- “How can I make sure that my share of the property goes to the people
that I want it to go to, rather than my future ex-spouse?”
We often tell clients that to best protect themselves, they should be meeting
with Steven Adler, Esq., and planning for the remote possibility of death
during or shortly after the divorce process is complete. Most people do
not realize that if they die during the divorce process without properly
planning for it,
their future ex-spouse may simply get everything.
Failure to change your will either before or after divorce could cause
If you don’t have a Will and you pass away during the divorce process,
your future ex-spouse, still technically your spouse during the process,
may inherit everything. Additionally, if you have a Will where you named your spouse as the beneficiary,
and the divorce is not finalized,
then your future ex-spouse will certainly inherit everything under the Will. Even if you disinherited your spouse
after the divorce, if you failed to change the executor or executrix, there will be serious
complications that will make it difficult for your children or other heirs
to get the property distribution that you intended. Most people do not
realize this, and fail to even consider it.
What is the spouse’s “elective share?”
Even if you do try to disinherit your future ex-spouse, he or she may still
be entitled to part of your estate pursuant to New York Estate Powers
and Trust Law, Section 5-1, which provides a “right of election.”
The elective share is the greater of:
- certain cash or cash equivalents up to $25,000.00;
- one automobile up to $25,000.00 in value; and
- the greater of one-third of the net estate and $50,000.00.
When a will is probated, the only assets under the jurisdiction of the
New York Surrogate’s Court are those assets owned solely by the
decedent. However, the right of election applies to jointly owned assets,
probate assets, and to other assets deemed testamentary substitutes. The
statutes can be complicated and difficult to understand, which is why
our firm works closely with Steven Adler, Esq., and our clients to minimize
the amount of property that a future ex-spouse is entitled to in the event
of a death during divorce.
If you are going through a divorce and fighting over assets, it would be
a shame for your future ex-spouse to get everything.
In most cases, the spouse’s elective share is considerablyless than the value of your entire probate estate. Accordingly, it is worthwhile
to immediately change your will, even if it is temporary, because you
will be decreasing the amount of assets that your estranged spouse will
receive in the event you do not live through the divorce proceedings.
We are sensitive to the fact that our clients are splitting their property
and income with their spouse during the divorce and after, making it very
difficult for anyone to live the same lifestyle in divorce that they did
in marriage. As a result of the foregoing and our close relationship with
Steven Adler, Esq., his firm offers an exclusive program to our divorcing
clients at a reduced price. Steven’s firm provides a streamlined
will for divorcing spouses at approximately half the cost of a regular
will, and then updates the Will and creates a full estate distribution
plan post-divorce. This process helps people going through divorce protect
their assets during the divorce, and helps them create a post-divorce
plan to minimize liabilities and problems, while ultimately making sure
that an ex-spouse doesn’t benefit accidentally or unintentionally.
How much would your divorcing spouse stand to inherit if you pass away?
Co-authored by: Jason Isaacson &