Is It a Good Idea to Change My Will During a Divorce?

Divorce Can be a Stressful Time, But It Can Also Provide a Valuable Opportunity to Reassess the Specifics of Your Estate Plan.

It is against public policy in the State of New Jersey to disinherit your spouse or ensure that your spouse does not inherit any portion of what you leave behind after you die. Even while your divorce is pending, it is still impossible to change your will in order to protect your estate from your soon-to-be former spouse from inheriting it. However, with the help of an experienced divorce and estate planning attorney at The Montanari Law Group, there are ways to protect your assets and your estate after you pass on. It is a good idea to change your will pending your divorce, but the change will come in the form of carefully choosing your executor. Here is what to consider about making changes to your last will and testament during the divorce process.

Addressing Beneficiary Designations During My Divorce in NJ

While a divorce is pending, it is not possible for a beneficiary designation to be changed. While you file for divorce, you must prove that there is a continuation of insurance coverage. You must also provide proof of any changes made to any policies within the last 90 days. The only way for a beneficiary designation to be changed is if both parties agree.

How is Your Estate Handled Once Divorce is Finalized?

After a divorce is finalized, and the family judge signs the divorce decree, all rights to inheritance are immediately revoked from the ex-spouse as a matter of law, meaning it is done automatically, and nothing has to be filed. This applies to any previous nomination of your former spouse to fiduciary of your will. For example, if you named your former spouse as executor and/or attorney-in-fact, your former spouse is stripped of these fiduciary roles upon signing of the divorce decree.

Furthermore, a former spouse can no longer enjoy the right of survivorship to jointly owned assets named in your estate. This right is automatically revoked along with any other inheritable assets your spouse may have received upon your death if the divorce decree was not finalized.

Estate Planning Aspects You Can’t Leave Out of Your Settlement Agreement

A settlement agreement is a legal document that dictates what will happen when a divorce goes into effect. If there are children involved, you can dictate in tour settlement agreement, and will, how your child will be cared for. This is only one aspect of what your discussion with your attorney will consist of as it relates to divorce and estate planning.

A lot depends upon whether or not you are divorced before you die or after, as well as, whether or not you have a valid will in place. If you pass away before the divorce is finalized, you are technically still married, and if you did not change the executor in your will, your estate will most likely be inherited by your soon-to-be former spouse. If you pass away after the divorce is finalized, as previously mentioned, your former spouse’s right to inherit gets automatically revoked. However, there are certain things to account for.

There are a few things that must be considered when considering estate planning in a settlement agreement. For example, it would be prudent to contemplate beneficiary designations of insurance policies. A divorce decree does not automatically revoke the right of a former spouse to be a beneficiary on an insurance policy, unlike the revocation of any right to inherit your estate. Furthermore, your former spouse can still receive assets from any retirement accounts, such as a 401k and/or pension, if you do not plan ahead.

Also, the sale of a house sometimes can only take place after the divorce is finalized. Marital homes may or may not be in someone’s estate (family homes), but it will be a good idea to address this in the settlement agreement.

Settlement agreements are good tools to protect whatever assets are not listed in your will. Just remember that if something happens to you before the divorce is finalized, your spouse is able to claim inheritance over everyone else. A good way to deter this from happening is to name your executor or the person who is charged with the responsibility of administering and distributing your estate after you pass on.

Consult a Wyckoff Lawyer for Help Organizing Your Estate Plan During Divorce in NJ

An experienced attorney in estate planning and divorce at The Montanari Law Group can definitely guide you through this arduous process. When getting a divorce, the adding of more invoices to your financial inventory may not be what you want to do; however, it may be the best thing you do in order to protect what matters most to you. There are many rules and regulations that go into effect when a divorce is initiated and even more so when it is finalized; therefore, you must ensure your estate’s protection from beginning to end and even longer.  In order to protect what your children are set to inherit, as well as any other family, you are strongly urged to consult with divorce and estate planning lawyers at our Little Falls office. We assist clients with these matters in West Milford, West Orange, Ringwood, South Orange, Woodland Park, Hawthorne, Wyckoff, and nearby towns across Northern New Jersey. Call us toll-free at 888-877-7985 or (973) 233-4396 for your free, confidential consultation.