Here’s a disquieting thought. In New Jersey, when a father gets divorced his will is automatically voided. This means that if you die after a divorce but before drawing up a new will and estate plan, your kids and their mother could end up locked in a fight over your assets.
Nobody wants that, and certainly no one wants to put young children through the agony of a battle between themselves or, more likely, their legal representative appointed by the court, their mother and your estate over who controls your assets.
When you were married, it was natural to trust your wife with your property and the other assets you had accumulated either separately or together as a couple. But the moment you separate, you need to rethink how you want to take care of your children if you should meet an untimely end.
A Judge Decides
Under state law, if you die after starting a divorce proceeding but before there is a final decree, what’s called a “constructive trust” is created by the court if you had not drawn up a new will. The distribution of your assets won’t be based on what your intention might have been when you and your spouse split but rather on what a judge thinks is an “equitable” resolution.
If you did the smart thing and revised your will, estate plan and beneficiary designations for things such as your life insurance when you separated, your ex may still be entitled to a portion of the estate prior to the final decree. But a court would look at what you intended to do while you were still alive and use it as the basis for distributing assets.
At the same time, you need to review all of your insurance policies, retirement accounts and any other assets where you might have designated a beneficiary. Along with a traditional life insurance policy that you may have purchased when you got married or had children, be sure to check your group health coverage at work. Many people don’t realize this but often their health insurance includes a small death benefit. Chances are you named your spouse without giving it much thought. Likewise, there is a beneficiary named for your retirement plan, whether it’s offered through an employer or an account you’ve been contributing to on your own. Each of these needs to be reviewed and revised.
A growing number of smart adults who are at the peak of health today are preparing so-called “living wills” and Do Not Resuscitate directives that provide guidance for their medical care in the event they are unable or incapable of making decisions. The living will and DNR tells your family and physicians to how to proceed with your treatment – or when to end it – should you be lying in a coma or have an illness or serious injury that impairs or precludes your ability to participate in making your own medical decisions.
Just as you need to review your will, estate plan and beneficiary designations when you and your wife split up, you must reconsider your medical directives during separation and after a divorce.
If your children are minors, the law won’t allow them to make these decisions. Without you granting a limited medical power of attorney to an adult and revising any DNR instructions, existing directives remain in force. Do you really want your ex to decide whether doctors should be told to pull the plug if you’re not able to decide for yourself?
For men and fathers, going through a divorce can mark a new beginning to your life. Yet without updating your will, estate plan, beneficiary designations and medical directives, a part of your past may continue to be involved in how your children are taken care of financially in the future.
Because your existing will is deemed to be revoked the moment your divorce is granted, it is crucial to begin planning your post-divorce life as soon as you separate. Without creating your own new will and estate plan, the state has one ready for you – and chances are it won’t be the way you want to take care of your children or your assets.
With the help of an experienced New Jersey divorce lawyer for men and fathers, you can proactively plan and thus ensure the future you want for your children and other loved ones. If you or someone you know is considering getting a divorce, call me or any of our family and divorce lawyers at either 973.562.0100 in Nutley or in Montclair at 862.245.4620. I know what you’re going through and we can help you begin writing the next chapter of your life’s story.