When couples are heading for divorce, they rarely think of their estate plan. Often, divorce is more about getting through it. But, for those going through the process, you should know that it can have a significant impact on your estate plan both legally and what you actually want the estate plan to contain after the divorce is finalized.
New Jersey Statutes 3B:3-14
According to New Jersey Statutes 3B:3-14, a divorce or annulment automatically revokes any provisions in a will, trust or other governing instrument that favor the former spouse or the former spouse’s relatives, unless the instrument expressly states otherwise. This means that the former spouse and the former spouse’s relatives are treated as if they had disclaimed or died before the divorce or annulment, and the property will pass to the next eligible beneficiary.
However, the key here is that there is no language included in your estate plan that could circumvent this law. And, you will need to determine where you want those items to go instead.
New Jersey Statutes 3B:12A-4.1
Similarly, New Jersey Statutes 3B:12A-4.1 state that a divorce or annulment automatically revokes any designation of the former spouse or the former spouse’s relatives as a guardian, conservator or other fiduciary for an incapacitated person, unless the governing instrument provides otherwise. The court will appoint a successor fiduciary in accordance with the law, which means you will need to update these documents with your preferred guardian, conservator, etc.
New Jersey Statutes 26:2H-57
Additionally, New Jersey Statutes 26:2H-57 state that a divorce, legal separation or termination of a domestic partnership or civil union automatically revokes any designation of the former spouse or partner as a health care representative under an advance directive for health care, unless the directive specifies otherwise. The next alternate health care representative named in the directive will act on behalf of the declarant. If you do not have another declarant, this is another document that needs to be updated during or after your divorce.
New Jersey Statutes 46:2B-8.13a
Furthermore, New Jersey Statutes 46:2B-8.13a state that a power of attorney cannot authorize an agent to make gifts of the principal’s property to the agent or the agent’s relatives, unless the power of attorney expressly permits such gifts. This restriction applies even if the agent is the principal’s spouse or partner, and it is not affected by a divorce or annulment. This brief overview goes to show that if you are working with your divorce attorney, you should also work with your estate attorney to update your estate plan.
