Unfortunately, when a couple goes through a divorce, it can be a very difficult and traumatic time. As difficult a time it might be, it is important to remember that your estate planning documents may need to be revised because of the implications that may come out of the divorce.

State laws differ from state to state about how a divorce affects the beneficiary listed on certain assets, such as on life insurance policies, 401K plans, and IRA accounts. In New York, when a New Yorker gets a divorce, all beneficiary dispositions they made to their former spouse, such as naming them as a beneficiary of a life insurance policy, a 401K plan or IRA, are automatically revoked by law under EPTL 5-1.4, unless, of course, the language in the governing instrument specifically states otherwise. Therefore, after a divorce decree has been issued, the bequest to the former spouse is revoked, and the next beneficiary listed would be entitled to the asset. However, if you fail to list successor beneficiaries, the asset would become a part of your “probate” estate and would require an estate administration or probate proceeding before it is passed to your loved ones.

In the same vein, a divorce will also revoke any rights your ex-spouse had to act as an executor under your last will & testament, or as an agent under your health care proxy or power of attorney. It is important to revisit these essential estate planning documents to make sure that you have someone else appointed to manage your affairs if you become sick or pass away.

Although EPTL 5-1.4 seems to have been put in place to help those that forget to change the beneficiaries listed on certain assets, or for those that forget to revise their estate planning documents after the divorce, it is important to remember that the automatic revocation provisions of EPTL 5-1.4 only takes effect upon the completion of the divorce proceeding. If you pass away before you are legally divorced, your spouse would be entitled to whatever your current estate plan gives them. In addition, even though the law provides for automatic revocation, some financial institutions may choose to pay out to the beneficiary they have listed on file despite the law. For these reasons, it is important to speak with a trusts and estates attorney if you are contemplating a divorce, are in the process of a divorce proceeding, or have just gone through a divorce.

As a side point, it is worth mentioning that while a divorce automatically revokes your ex-spouse’s designation as beneficiary or agent with respect to your estate planning documents and your retirement accounts, it does not remove any of the ex-spouse’s family or friends as your agent or beneficiaries that you may have chosen under your estate planning documents. As such, if your last will and testament appoints your ex-spouse’s brother to be the legal guardian of your children, or if you left any inheritance to any of your former spouse’s family or friends, a divorce does not revoke those selections. So unless you are in love with your ex-in-laws, it is another reason why you should review your estate planning documents and revise anything that needs to be updated.

As a general rule, it is a good idea for all of us to review our estate planning documents at least once every five years (or sooner, if we experience a significant change in financial or familial status). Having an efficient estate plan in place not only ensures that your assets will be managed and distributed according to your wishes and directives, but  also alleviates burdens o your family members and reduces the likelihood of  disputes.  An efficient estate plan can ensure that your family is adequately provided for, protect your assets from any creditors to whom your beneficiaries may owe money, and can shield assets from your heir’s spouses and divorced spouses.

May Hashem bless us all with long, happy and healthy lives – amen!

The Trusts & Estates Practice Group at Yedid & Zeitoune, PLLC collectively work together with each client to ultimately put together an Estate Plan customized to each client’s particular needs, taking into account the need to balance control with protection. The attorneys in the Trust & Estates Practice Group at Yedid & Zeitoune have a combined 20 years of legal experience and collectively work together with each client to ultimately put together an Estate Plan customized to each client’s particular needs.

Isaac Yedid, Esq. & Raymond Zeitoune, Esq.

Yedid & Zeitoune, PLLC

1172 Coney Island Avenue Brooklyn, New York 11230

Phone: (347) 461-9800 Fax: (718) 421-1695 Email: [email protected]

NYC Office – By Appointment Only:

152 Madison Avenue, Suite 1105 New York, New York 10016