Brian D. Perskin & Associates

Divorce and Estate Planning in New York State

Here at Brian D. Perskin & Associates, P.C., we are very big supporters of modifying your estate plans and details of your last will and testament after a divorce is finalized. By doing so, you can guarantee that your ex-spouse, along with members of his family, are not entitled to receive part of your estate after your death. But what if you want to disinherit your spouse prior to your Judgment of Divorce?

In New York State, you cannot fully disinherit your spouse until a judge finalizes your divorce, however, you can take steps to change your will. New York, along with other states across the county, utilizes a law called Elective Share. According to the laws governing elective share, if you were to pass away during a pending or current divorce action, your spouse is entitled to either one half of your estate if you do not have children, and one third if you do, as well as a sum of money. Since New Yorkers are unable to completely disinherit their spouse prior to a divorce being finalized, many couples choose to sign a Separation Agreement prior to beginning a divorce action. The separation agreement gives soon-to-be ex-spouses the ability to outline terms of a separation, which includes the financial aspects, as well as agreements regarding estates and wills.

Modifying your will before your divorce is finalized may seem like an unnecessary step, but it isn't. Many married couples opt to designate a bulk (if not all) of their estate to their significant other, because divorce isn't even a blip on their radar if the marriage is a happy one. Now, imagine you were to become involved in a very messy and contested divorce, with lots of tension and fighting between you and your former spouse. If you were to pass away in the midst of the divorce action, and you have not disinherited your husband or wife, the person you have been battling with would receive the full amount of your estate's worth (or whatever percentage you originally granted to them in your initial will). Once your ex-spouse has legally obtained the property or funds from your estate, they are free to do with it what they wish, which includes leaving it to a new partner and their children (if they were to get re-married).

It is also imperative that you revoke your spouse's power of attorney privilege over you prior to filing for divorce, as well as update your living will. Your living will dictates who will have the authority to make life or death decisions on your behalf, should you fall terminally ill or are gravely injured in an accident and thus incapacitated. Simply put, this person (who is usually your husband or wife) has the final decision as to whether or not you are to be taken off of life support. Further, a power of attorney (again, usually your spouse) has the right to make financial decisions on your behalf if you are unable to do so. The last thing you want is for your estranged and upset spouse to make such life altering decisions for you. Instead, we recommend that you turn to a close relative for support, like a parent or sibling, and ask if they would be willing to become your power of attorney.

Given the sensitive and complicated nature of divorces that involve wills and estate planning, it is highly recommended that you contact an experienced matrimonial lawyer, as well as a probate attorney, prior to filing for divorce. A matrimonial and family law attorney will advise you throughout your divorce action, whereas a probate lawyer will assist you with the technical aspect (and any legal ramifications) of modifying your living will, last will and testament, estate, and power of attorney. The staff at Brian D. Perskin & Associates, P.C. specializes in unique and contested divorce and family law cases. With over 20 years spent building a reputation as the best and most aggressive matrimonial law firms in New York City, Brian and his team of well-trained attorneys represent clients throughout the five boroughs and Long Island. Let our experience work for you by calling (646) 759-9392 or (718) 875-7584 to schedule an initial consultation today!