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Estate Planning When There is a Divorce

shutterstock_1372939091-300x200Many articles have been written about New York estate planning when a couple is considering or entering into a divorce.  The New York Probate Lawyer Blog has published a number of articles on this topic in the past.  However, it is important from time to time to review this information.

Spousal rights are a very special area when considering estate issues.  This is due to the fact that New York estate laws provide a surviving spouse with certain rights, most importantly a spousal right of election.  This prevents a surviving spouse from being disinherited.  Estates, Powers and Trusts Law Section 5-1.1A entitled “Right of election by surviving spouse” essentially provides that a surviving spouse is entitled to receive at least one-third of a deceased spouse’s estate.  So, even when spouses are engaged in actual or possible divorce proceedings, the death of one may still result in an inheritance by another.  Until there is a final divorce or a waiver of spousal rights, a feuding husband and wife may be subjected to inheritance rights.  I have seen many cases where parties have been separated for many years, even decades, but a spousal right of election might still apply.

As can be imagined, even though parties may change their Last Wills and Trusts and other asset dispositions, inheritance by a surviving spouse prior to a divorce may not be avoided.  However, once parties do officially become divorced, there are still many items to be taken into consideration.  While a divorce may nullify preexisting provisions in Wills or other post-death beneficiary designations, these documents should not be left to chance.

It is essential to make changes to all preexisting Wills and Trusts so that any provisions for a divorced spouse are modified or eliminated.  Additionally, all types of beneficiary designations naming the divorced spouse in retirement accounts such as 401Ks, IRAs and similar pensions should be reviewed and provisions should be modified.  The same review should occur with regard to life insurance policies, annuities and similar investments.

Another area that must be examined concerns business holdings such as corporations, limited liability companies and real estate ownership.  All possible financial arrangements in which a divorced spousal interest may appear require a careful review.

Advance directive appointments such as health care proxies and powers of attorney in which a divorced spouse’s name appears should be examined.  These are important papers and they need to be updated.  When financial documents or personal advance directives are not properly modified, there may be controversies or estate litigation in Surrogate’s Court.

Going through a divorce is a complicated procedure.  Taking care of estate planning and personal management issues associated with a divorce can also be complicated.  I have represented clients in these situations in New York estate cases for decades.  Call Me Now for a free confidential review of your estate and planning issue.  We offer reasonable and flexible fee arrangements and personal representation.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County.  If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.

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