In New York, your spouse has something called a right of election. What this means is that no matter what you want to leave them in your will, they have a right to $50,000 plus one third of your estate. So for instance if you die with a will leaving your spouse out because perhaps you did not update your will or you purposely left your spouse out for whatever reason, they will still get a share of your estate. If you die without a will, your spouse is entitled to even more – $50,000 and half your estate.
When we draft divorce documents, we include waiver of estate rights. This essentially says that as soon as the agreement is executed, but before the divorce judgment is signed by the judge (which can take six to eight months) the spouses give up their rights to share in the other’s estate if one should pass away before the other.
With divorcing couples where the plaintiff has already filed a divorce and the defendant has already been served, automatic restraining orders are in place which state that neither party can change beneficiaries on their asset accounts. Once the stipulation or agreement is executed, both parties can feel free to make any changes necessary to ensure that the account will go to whomever they wish.
The waiver of estate rights is so important that I have even insisted on including the estates waiver in an agreement involving an annulment. Once people have decided to split up, they usually don’t want their soon-to-be ex getting anything from their estate.
We frequently include an estate waiver in prenuptial agreements as well, especially for second marriages. People getting married for the second time frequently want the bulk of their estate to go to the children of their first marriage, not to the new spouse. We do include a clause that allows for them to leave the second spouse a bequest despite the language in the prenuptial agreement.
Making sure your former spouse does not inherit from your estate is only one step. Our office drafts estate plans on a regular basis. After client’s get divorced one of the next things they should do is update or initially draft their estate plan which includes a will, health care proxy, living will and power of attorney. Then they are truly planning for their future.
Deborah E. Kaminetzky, Esq.
Kaminetzky Law & Mediation, P.C.
132 Spruce Street
Cedarhurst, New York 11516