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DivorceDivorce and Estate Planning: How To Ensure Your Estate Does Not Go to Your Estranged Spouse

March 10, 2008

Phil Bernstein, in his New York Probate Litigation Blog, highlights several issues about the impact on divorce on an estate plan. In his post, Phil reminds us of the importance of finalizing the divorce settlement as soon as practicable.

There is probably no matrimonial lawyer who has spent substantial time in practice who has not had to deal with the disaster which occurs when a client dies before the entry of a divorce decree or the execution of a stipulation of settlement or separation agreement providing for the couple disinheriting each other. When that happens, as Ms. Hamill so aptly observes, the survivor will generally inherit all the property of the marriage.

You cannot disinherit your spouse during the marriage. Each spouse has an “elective share” in the estate of the other. If you attempt to disinherit your spouse during the marriage, he/she can elect to take his/her elective share (about 1/3 of the estate if there are children of the marriage and ½ if there are no children).

Most settlement agreements contain provisions wherein each spouse waives their respective rights of election and any interest in the other’s estate. If you should die before an agreement containing these waivers is signed or before the court enters a judgment of divorce, your estranged spouse can (and probably will) exercise the right of election and inherit from you.

I had at least one case wherein a wife prolonged the divorce because her husband was ill and she was gambling that her husband would pass away before the divorce was granted and her right of election was extinguished.

The only way to ensure that your estate goes to your intended beneficiaries and not your estranged spouse is to make sure that the divorce settlement agreement is promptly signed.

Mr. Bernstein aptly suggests that you check all of the beneficiary designations of your insurance and retirement plans. If your former spouse is named as a beneficiary, he/she will be paid when you die


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