An article in today’sSan Antonio Express News gives an important reminder to revise your Will (and revocable trusts where applicable) when you are divorced. As in Texas , New York law provides that an immediate legal consequence of a judgment of divorce is that each party automatically disinherits the other. Numerous legal relationships are instantly extinguished. Joint accounts with right of survivorship are converted into joint accounts in common. Ownership of real property which was originally as tenants by the entirety (where there is an automatic right of survivorship between husband and wife) are converted into tenancies in commnon,.Certain provisions in a Will or revocable trust may not longer be desirable.
As the author points out, there may be a considerable passage of time between the settlement of a divorce and the execution of a stipulation settling the action or the issuance of a judgment of divorce. Here in New York, budget cuts have delayed the issuance of a divorce judgment for more than eight months in certain instances. In the absence of a stipulation of settlement which provides for mutual disinheritance and is signed and notarized and in "recordable form" (which means that it is in a form that would qualify it to be recorded with the county clerk just as one might record a deed or a mortgage), spousal rights would not be extinguished if one of the parties died prior to the divorce being issued.
The effect of this would be that the action for divorce would abate as if it had never been commenced. The surviving spouse would retain all joint assets such as the house, bank accounts, etc . In a situation where the divorce was to end a second marriage, the children of the deceased spouse could be out in the cold as their step parent would wind up with most, if not all of the estate.
In the course of my practice, three clients have died suddenly between the date we walked out of the courthouse with a "handshake" agreement which needed to be reduced to writing and signed. The last time this happened was literally the night of the settlement. On each of these times, not only did children of first marriages lose out but also legal fees which were owed were never paid . (Somehow, the surviving spouse never felt the responsibility to cover her late husband’s obligations for his legal fees!). While it is sometimes just plain impossible to get the job done in time to beat the grim reaper, the final settlement documents should be done as quickly as possible.
While a divorce often leaves one not only short on funds but also just plain disgusted with the idea of spending even one more penny on legal fees, the review and revision of Wills and trusts should be done at the same time that the divorce is being completed. Just bite the bullet and do it.