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Can My Ex-Spouse Get Any of My Estate?

Important life events — like births, deaths, marriage and divorce — are a good time to revisit your estate plan. (Or make a plan for the first time!) Sometimes, however, a divorced person dies without ever having changed the will that left most or all of their estate to someone they are no longer in a relationship with. A previously-married couple might still own property as joint tenants with right of survivorship. A variety of other arrangements might also mention the ex-spouse as a life insurance beneficiary, a joint owner of a bank account or someone entitled to inherit benefits. So what happens when one of them dies?

You will probably be relieved to learn that getting divorced automatically revokes all gifts and appointments to the former spouse and prevents the ex-spouse from receiving any death-related benefits. This is called revocation by operation of law. When a gift is revoked by operation of law, the former spouses do not have to change any other documents for it to take effect. If you actually want your former spouse to receive a gift or appointment in your will, even after the divorce, you will need to execute a separate instrument to that effect.

Under New York law, gifts and appointments come back into effect if the spouses remarry each other, so long as the spouse who wrote the will has not actually changed it. Also, if you die without a will, your former spouse has no rights to any part of the estate that passes through probate.

Once the spouses are divorced, all the following are revoked:

  • Any gift in a will
  • Any power of appointment
  • Any security registration with a beneficiary
  • Any beneficiary designation in a life insurance policy
  • To the extent permitted by law, any beneficiary designation in a retirement benefits plan or pension
  • Any gift in a revocable trust, including joint bank accounts in trust form
  • Any nomination of the former spouse as a trustee of a trust, or as executor, guardian, personal representative or conservator
  • Interests in joint tenancies with right of survivorship

With this form of revocation, former spouses are treated as if they were already deceased. In some circumstances, this creates confusion regarding who gets the gift in their place, which is one of the reasons why it is best actually to write a new will and make a new estate plan after a marriage ends.

If you have an ex-spouse, contact our firm for assistance ensuring your estate plan reflects your current desires and family relationships.

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