When going through a divorce, there are almost no limits to the number of personal, financial and logistical issues a soon-to-be former spouse must confront. One issue that sometimes falls through the cracks is the need to create and execute a new will to reflect post-divorce realities. It is the rare person, indeed, who would not want to make some changes to a will that had left an entire estate to a former spouse. Too often, though, the task of changing a will after a decision has been made to divorce is put on the back burner; sometimes, until after it is too late. The governing laws in both New Jersey and New York include provisions which have the effect of amending a will and certain beneficiary designations in the event of a divorce. These statutes provide a common-sense approach to the issues raised by divorce; however, as demonstrated in this article, they will not function as a completely satisfactory substitute for careful estate planning.
The applicable law in New Jersey, N.J.S.A. 3B:3-14, was originally enacted in 1982 and amended in 2005. It provides that, except as otherwise expressly provided in a governing instrument, a court order, or a contract relating to the division of the marital estate, a divorce or annulment automatically revokes any revocable dispositions made by an individual in a governing instrument to his or her former spouse, or to a relative of his or her former spouse. Following the same reasoning, a divorce or annulment will also convert any property interest held by former spouses as tenants by the entirety, or as joint tenants with right of survivorship, into a simple tenancy in common; whereby each will own an equal share of the property and the entirety of property will no longer pass to one or the other automatically upon death. In addition, N.J.S.A. 3B:3-14 provides that any revocable provisions in an instrument conveying a special power of appointment to a former spouse (or a relative of a former spouse), or any nomination of the individual’s former spouse (or relative of a former spouse) to serve in a fiduciary or representative capacity will also be revoked, as a matter of law.
