It is the unfortunate reality that marriages can end in separation or divorce. Although separation and divorce are a natural part of current relationship trends in the United States and across the world, it is important to understand their estate planning implications. Particularly, it is important to understand the difference between a divorce and a separation in estate planning terms. In New York, regardless of whether a separation may be legal or informal, the two parties are still legally married and spouses are entitled to a portion of an estate regardless of whether they are disinherited in a last will and testament. No matter how long spouses are separated or estranged, they are still legally married until a divorce proceeding is finalized. Until a divorce proceeding is finalized, it is legally impossible to disinherit a spouse, and even if a divorce is finalized, any will created before the finalization of a divorce can be contested during probate if it was not changed. In order to prevent the inevitable grief of having an estranged spouse making claims on your estate and lengthening the probate process to the detriment of your family and beneficiaries, it is important that divorce proceedings are finalized before any final will is drafted and a lasting estate plan created. Having an experienced estate planning attorney create a comprehensive estate plan which takes into account your marital status will help avoid the potential of an estranged spouse making unwanted claims on your estate and prolonging the grief of your loved ones.
Separation and Inheritance
New York prohibits a spouse to disinherit an estranged or separated spouse, regardless of whether they have been disinherited in a last will and testament. It is crucial to understand that every last will and testament must go through the probate process and that in the course of the probate process, a will can be contested. This is how an estranged or separated spouse can make claims on your estate even if you write them out of your will, and New York law gives them the legal right to do so. Section 5-1.1 of New York’s Estates, Powers, and Trusts Law gives surviving spouses the right of election, which means that they are entitled to a certain portion of an estate plan regardless of whether they were legally separated or disinherited. If you die without a last will and testament, your estate will have to go through the probate process and the opportunity will again present itself for your estranged spouse to make claims on assets you would have otherwise wanted passed down to your children, grandchildren, or other beneficiaries. In other words, New York law makes it impossible for you to disinherit your spouse, regardless of whether you are legally separated. The right of election ensures that a surviving spouse will, generally, receive one-third of the net estate or $50,000, whichever is greater. If an estate is worth less than $50,000, the surviving spouse can elect to inherit it entirely. If a person dies without a last will and testament or other estate planning document, Section 4-1.1 of New York’s Estates, Powers, and Trusts Law guarantees that if the decedent is survived only by a spouse, the spouse will inherit the entire net estate. If the decedent is survived by a spouse and a child or children, the spouse is entitled to $50,000 along with half of the remaining estate, with the rest to be divided up among the surviving child or children.
How To Avoid Unwanted Claims
As evidenced above, New York law makes disinheriting your estranged spouse nearly impossible and legally permits them to make claims on your estate regardless of whether you disinherit them. There are, however, several steps you can take to ensure that your surviving spouse will not make unwanted claims on your estate. The first, and most important, is to divorce your spouse rather than separating, especially if the relationship has reached the point of no return or is no longer amicable. Although divorce is a lengthy and costly process, it is the only way to ensure that a spouse will not make unwanted claims on your estate, as New York does not provide for a former spouse after a divorce proceeding has been finalized. The second is to create an estate plan that takes your marital status into account. If you created a last will and testament with your spouse as a legal inheritor and you later divorced them, rewrite your will and remove them as inheritor. It is recommended that wills are updated frequently and inheritors reviewed if your circumstances change. If you do not intend on divorcing your estranged spouse, then a last will and testament is not the estate planning tool for you. Instead, you can draft a living trust, revocable or irrevocable, to prevent your estate having to go through probate and possibly being contested. Finally, consulting with an experienced estate planning attorney will ensure that all aspects of your marital status are taken into account when drafting your estate plan and will ensure that your estate plan is resistant to unwanted claims by surviving spouses that you intend to disinherit.
Separation and divorce are an unfortunate outcome each marriage can face, but they should not be viewed as unnatural. Relationships end, amicably or not, and separated or divorced spouses will continue with their lives. It is important, nevertheless, to understand the legal implications of separation and divorce. Separated spouses are still legally married, regardless of the length of their separation, and a separated or estranged spouse is entitled to a portion of their deceased spouse's estate under New York law, regardless of a decedent’s expressed wishes. To avoid the potential of an estranged spouse making unwanted claims on your estate, you must frequently update your estate plan and understand the variety of estate planning tools at your disposal, which will both be made easier by the counsel of an experienced estate planning attorney. To schedule a consultation, call the Law Office of Inna Fershteyn and Associates at (718) 333-2394.