By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Planning, Wills & Trust Attorney
Most people think that once a judge of the Family Division signs his or her name to a Judgment of Divorce, followed by the parties signing their property settlement agreement, each is automatically cut out of the other’s Last Will and therefor won’t receive a penny when he or she dies. And in large measure they are correct. In some regards, an ex-spouse forfeits certain rights to the other’s estate, such as the right to claim an elective share, as I discussed in earlier blogs. But as I also warned in a previous blog, divorce does not cut an ex-spouse out from being the beneficiary of a 401(k) plan or an IRA. So what does the law say happens to an estate plan upon the granting of a divorce? Three subjects are revoked automatically by law:
- Dispositions of property made to the former spouse or his or her relative (that are revocable- so 401(k) or IRAs are not included);
- Any rights to become executor of the others will, trustee of their trust, or any other fiduciary position; and
- Any power of appointment given to the former spouse or his or her relative;
In addition, any property held by the couple jointly is severed, and the owners become tenants in common, free to sell their interest or give it away their property interest to whomever they choose without it having to go to the ex-spouse by operation of law.
Remember that these rules are default rules. A provision written after a divorce in a person’s will can still appoint the ex-spouse as executrix no matter that a judgment of divorce exists. In that case, the statute is inapplicable. Your property settlement agreement, pre-nuptial agreement, or judgment of divorce also overrides this statute and governs how property is distributed.
To discuss your NJ Estate Planning matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing consultations if you are unable to come to our office.