An Idea to Consider: Creating a Will Before You File for Divorce
When you are thinking about divorce, there is always a lot on your mind. One thing that you may not think about is creating a will, if you do not already have one. Sometimes, that can be a very costly mistake.
All States have laws (called “intestacy statutes”) which determine what happens to the assets of someone who dies without a will. In New Jersey, if you die without a will leaving behind only a husband or wife (no surviving parents or children), your spouse will receive your entire estate. The same is true if you leave behind a spouse and children, as long as they are all children you had with that spouse.
If that happens, the only way for your relatives to possibly get anything back is to make a claim in your divorce case. But what if you had not gotten around to filing for divorce before you died? The answer is: your relatives are out of luck.
On the other hand, if before you died you had made a will leaving everything to your children and designating a trusted friend or relative as the trustee, your spouse may not get anything after your death—except of course what is necessary to support your children.
It is true that in New Jersey, a surviving spouse who is left out of a will is nevertheless entitled to claim an elective share of the deceased spouse’s augmented estate–essentially, one-third of what is left in the estate after all necessary expenses have been paid. But spouses who did not live with the decedent or were involved in something that would justify a divorce (for example, adultery) lose the right to make such a claim.
Sound complicated? It is. As New Jersey divorce lawyers, we are frequently asked to provide advice to people who are thinking about divorce but have not yet made a firm decision.
If you would like to set up a personal and confidential appointment, just call us at (973) 455-1220 or fill out the Contact Form on our Website.