While happily married, it is common for a couple to leave everything to each other in their wills or to name an in-law to act as executor or trustee. However, once the marriage sours, the thought of such things become unpalatable. Unfortunately, your soon-to-be-ex-spouse could still inherit your estate unless you change your will despite the fact that divorce papers have been filed.
Under the New Jersey Probate Code, which sets forth the process for settling a decedent’s estate, all dispositions of property made by a divorced individual to (1) former spouses and (2) relatives of former spouses, are automatically revoked. Consistently, the appointments of former spouses and relatives of former spouses to serve as fiduciaries (e.g., executors, trustees, guardians, attorneys in fact) are automatically revoked. The law is not limited to last wills and testament but effects all “governing Instruments” which include last wills and testament, powers of attorney, advanced directives, life insurance policies, retirement accounts, accounts labeled “Pay on Death,” etc. For example, once divorced, the law will bar your former spouse from collecting your estate and your in-laws from deciding what medical treatment you receive. It is important to keep in mind that the probate code does not apply to work-related assets, such as 401(K) accounts and life insurance policies through employment, which are governed by Federal Law.
The Probate Code is intended to implement the desires of a divorced individual who the law assumes would want to eliminate a former spouse and his or her family from the individual’s life but may have forgotten to execute new documents. The default provisions provide for automatic revocation. Therefore, should an individual wish for a former spouse’s relatives to receive his or her estate, or continue as health care representatives, new documents must be prepared after the divorce is final.
Unfortunately, the Code does not address the status of individuals while they are going through the divorce process. The law only addresses “divorced individuals.” Therefore, should an individual die after the complaint for divorce is filed, but before the divorce judgment is entered, and has not changed his or her “governing instruments,” the documents would likely be enforced. The spouse the individual was so desperately trying to sever from his or her life would inherit his or her estate and determine if he or she remains on a ventilator while in a coma. The assets that the couple was fighting to withhold from each other during life are each other’s upon death.
Individuals who are contemplating divorce or who have filed for divorce should immediately execute new estate planning documents to avoid the results discussed above. However, a matrimonial lawyer should be contacted before beneficiary designations are changed because the matrimonial laws restrict changing insurance coverage during the divorce process.
It should be noted that the laws governing disposition of a person’s estate in the absence of a will, provide that, under certain circumstances, all of an estate passes to the divorcing spouse. Accordingly, by merely destroying an existing will, an individual does not assure that his soon-to-be former spouse is disinherited.
