Probate, trust, guardianship and inheritance litigation
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How Does Divorce Impact a New Jersey Estate Plan?

What happens to your estate plan under New Jersey law when you get a divorce?  If you do not make changes to your estate plan after getting a divorce, New Jersey law automatically provides some protection by providing that your former spouse’s designation as a beneficiary under any “governing instrument” is revoked.

Revocation Of Estate Planning Provisions In Favor Of Former Spouse Upon Divorce In New Jersey

New Jersey Rev Stat § 3B:3-14 governs the revocation of a former spouses entitlements under “governing documents” and provides that a divorce or annulment:

(1) revokes any revocable:

(a) dispositions or appointment of property made by a divorced individual to his former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual’s former spouse;

(b) provision in a governing instrument conferring a general or special power of appointment on the divorced individual’s former spouse, or on a relative of the divorced individual’s former spouse; and

(c) nomination in a governing instrument of a divorced individual’s former spouse or a relative of the divorced individual’s former spouse to serve in any fiduciary or representative capacity; and

(2) severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship or as tenants by the entireties, transforming the interests of the former spouses into tenancies in common.

The automatic revocation provisions of New Jersey law will not apply if contrary to the express terms of a governing instrument, a court order, or a contract relating to the division of the marital assets made between the divorced individuals before or after the marriage, divorce, or annulment.

Former Spouses Are Treated As If They Died Prior To the Divorce Or Annulment

In the event of a divorce or annulment, provisions of a governing instrument are given effect as if the former spouse and relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the former spouse died immediately before the divorce or annulment.

What Happens If The Spouses Remarry Each Other?

If the former spouses end up getting remarried to each other, and the only reason the provisions of governing instruments were revoked was under New Jersey law, then the provisions are revived by the remarriage.

What Is a Governing Instrument Under the New Jersey Revocation Upon Divorce Law?

New Jersey Rev Stat § 3B:3-14 (the statute governing revocation of estate planning provisions upon divorce under New Jersey law) defines “governing instrument” as “a governing instrument executed by the divorced individual before the divorce or annulment,”  which is not very helpful.  However, the definition of governing instrument can be found in  in NJ Rev Stat § 3B:1-1 and includes a:

  • Deed
  • Will
  • Trust
  • Insurance or annuity policy
  • Account with the designation “pay on death” (POD) or “transfer on death” (TOD)
  • Security registered in beneficiary form with the designation “pay on death” (POD) or “transfer on death” (TOD)
  • Pension
  • Profit-sharing
  • Retirement or similar benefit plan
  • Instrument creating or exercising a power of appointment or a power of attorney
  • Dispositive, appointive, or nominative instrument of any similar type

 

Therefore, under New Jersey law, upon divorce your former spouse will automatically not benefit from the most common estate planning documents as a beneficiary, i.e., your will, trust, insurance policies, and pay on death designations.

Of note, is that your former spouse’s relatives will also not inherit after a divorce under New Jersey law.   “Relative of the divorced individual’s former spouse” means an individual who is related to the divorced individual’s former spouse by blood, adoption or affinity and who, after the divorce or annulment, is not related to the divorced individual by blood, adoption or affinity.

It is never a good idea to rely on the default provisions of New Jersey law to remove your former spouse from your estate planning.  Instead, the best way to prevent conflict and confusion is to work with a New Jersey probate attorney and update your estate planning after a divorce.

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