Divorce is often a challenging experience, not only emotionally but also legally. It can have lasting effects on various aspects of your life, including your estate plan. If you are going through a divorce in New York, one of the most important things you need to consider is updating your will. After a divorce, your life circumstances will change, and it is crucial to ensure that your estate planning documents reflect those changes.
Richard H. Cole
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Thomas F. Hewner
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Donna L. Haslinger
Partner
Vivian P. Roche'
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Keith R. Rosso
Attorney
Tasha D. Frazie
Attorney
Tyler I. Wood
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Marc A. Cangé
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Teresa M. Cappiello
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Updating your will after a divorce is not just a suggestion; it’s a necessary step in protecting your assets and ensuring that your wishes are honored. In this blog, we will explore why you should update your will after divorce in New York, the legal implications of not doing so, and the steps you should take to ensure your estate is managed according to your current situation.
The Importance of Updating Your Will After Divorce 
One of the most significant reasons to update your will after divorce is to ensure that your assets are distributed according to your new circumstances. A will that has not been updated may still reflect the wishes you had when you were married, potentially leaving assets to your ex-spouse or naming them as your personal representative. This could lead to legal challenges, confusion, or even unintended consequences. To prevent these issues, it’s essential to revisit your will and make the necessary changes.
Removing Your Ex-Spouse as a Beneficiary
In many cases, your ex-spouse will have been named as the primary beneficiary of your estate, especially if you have a simple will. This means that in the event of your death, your ex-spouse may inherit a portion or all of your estate. After a divorce, this is generally no longer your intention. It is crucial to remove your ex-spouse from your will to ensure that your assets go to the right people.
However, removing an ex-spouse from your will is not always as simple as crossing out their name and replacing it with someone else. Under New York law, if your will names your ex-spouse as a beneficiary or as an executor, those provisions may be automatically revoked after a divorce. While the law can provide some protection, it’s still best practice to update the document to reflect your wishes and avoid confusion.
Addressing Powers of Attorney
Along with revising your beneficiaries, updating your will after divorce should also include changes to any powers of attorney that may have been granted to your ex-spouse. Powers of attorney give someone the legal right to make decisions on your behalf, whether regarding your financial matters or your healthcare decisions. If your ex-spouse currently holds this power, it’s important to revoke it and assign it to a trusted family member or friend who will act in your best interests.
In addition to powers of attorney, you may also want to review and update other legal documents like living wills or healthcare proxies to reflect your current preferences and trusted individuals.
Reevaluating Guardianship of Minor Children
If you have children and your will names your ex-spouse as the guardian, it is essential to make changes. In the event of your death, the guardian named in your will would assume responsibility for your children. After a divorce, you may want to reconsider who should be the guardian of your children, as your ex-spouse may no longer be the most appropriate choice.
Even if you still want your ex-spouse to act as a guardian, you may want to include additional instructions for their care or include an alternate guardian in case your ex-spouse is unavailable. Revising your will to ensure that your children’s welfare is protected is an essential part of your estate plan after a divorce.
Distributing Your Assets Fairly
Divorce typically leads to a division of marital assets, and this needs to be reflected in your estate plan. You may need to update your will to ensure that your newly divided assets are distributed according to your wishes. If you haven’t already divided your property through your divorce agreement, your will can help clarify how you want your assets to be distributed. This is particularly important if there are sentimental or valuable items that need to go to specific family members.
Your will is also a way to ensure that any joint assets with your ex-spouse are properly handled. Without updates, there’s a risk that assets like real estate or savings accounts could be left to your ex-spouse, which may not reflect your current intentions. If you have new assets after your divorce, such as a home or business, be sure to update your will to ensure these assets are properly included and distributed.
What Happens If You Don’t Update Your Will After Divorce?
Failing to update your will after divorce can lead to unintended consequences. For instance, if you don’t remove your ex-spouse as a beneficiary, they could still inherit from your estate. If you don’t name a new guardian for your children, a court may decide who will have custody, which might not align with your wishes. Additionally, failure to update powers of attorney or healthcare proxies could leave your ex-spouse in control of your affairs.
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New York law provides some protection for divorcing individuals, automatically revoking provisions that favor an ex-spouse. However, these protections can be limited, and your intentions could still be challenged or overlooked if your will is not properly updated. The best way to ensure that your wishes are followed and your estate is handled as you desire is to take the time to update your will promptly after your divorce is final.
Steps to Take When Updating Your Will After Divorce
Once you understand the importance of updating your will after divorce, the next step is to take action. Here are the steps you should take to make sure your estate plan reflects your new circumstances:
Consult with an Experienced Estate Planning Attorney
Divorce can be complicated, and so can updating your estate plan afterward. An experienced attorney can guide you through the process of revising your will and ensuring that all necessary changes are made. They can also help you understand the legal implications of your decisions and make sure that your estate plan is comprehensive.
Review All Beneficiary Designations
In addition to your will, be sure to review other legal documents like life insurance policies, retirement accounts, and bank accounts. You will need to update the beneficiaries on these accounts as well to ensure that your ex-spouse is not named as a beneficiary.
Create a New Will
Once you’ve decided on the necessary changes to your estate plan, create a new will that reflects your updated wishes. Be sure that your will is legally valid and properly signed to avoid challenges after your passing. A new will ensures that your intentions are clear and that your estate is divided as you wish.
Consider Setting Up a Trust
If you want additional protection for your assets or to minimize estate taxes, consider setting up a trust. A trust can help manage your assets and ensure that they are distributed according to your wishes. It can also help protect your assets from creditors and reduce the probate process.
Updating your will after a divorce in New York is essential to ensure that your estate plan aligns with your current wishes. By taking the necessary steps to revise your will, you can protect your family, your assets, and your legacy. Make sure to work with an experienced estate planning attorney to guide you through the process and ensure that your updated will is legally sound.
At Cole, Sorrentino, Hurley, Hewner & Gambino, P.C., we understand the complexities of estate planning after a divorce. If you need assistance in updating your will or navigating other aspects of your estate plan, contact us today to schedule a consultation. We are here to help you protect your future.