Interim Wills and Divorce

Monmouth County NJ Interim Wills and Divorce Attorneys

Under N.J.S.A. 3B:5-2, if a married person with children dies intestate (with no will), then ALL ASSETS pass to the surviving spouse. If there are no children, then the surviving spouse takes the first 35 percent (not less than $50,000 and not more than $200,000) plus three-fourths of the balance of the estate. The remaining one-fourth goes to surviving parents, if no parents, then siblings, and so on (pursuant to N.J.S.A. 3B:5-4). In the case of stepchildren, the situation becomes complicated, but the surviving spouse still inherits a significant share.

Any divorcing spouse would be quite troubled, to say the least, by the knowledge that, should he or she pass away while the divorce is pending, the estranged spouse inherits a large portion of his or her estate, including marital and nonmarital assets.

In this case, an interim will can be drafted to designate an executor, leave assets to individuals other than the estranged spouse, set up a simple minors trust for estates being left to children and designate a trustee other than the soon-to-be-ex-spouse.

Most married couples have wills, and most often they are “mirror” wills, where each leaves the other surviving spouse their entire estates, naming each other as fiduciaries. A divorce decree extinguishes the right of a former spouse to inherit under the intestacy statutes or by a prior will, but the fiduciary appointments, powers of attorney or living will stand until they are changed. Intestacy law (no will) does not address divorce, and the surviving spouse stands to inherit a good portion of the marital estate. Equitable share laws along with case law generally hold that a surviving spouse is barred from recovering an elective share, although some courts have awarded an elective share to a disinherited divorcing spouse.

A trained, experienced attorney will consider probate code, the intestacy statute, the equitable share statute and case law to draft an interim will to make your wishes clearly understood and protected. The right attorney will skillfully draft crucial documents in order to protect your estate, should you pass away while you are not yet legally divorced, from being vulnerable to your soon-to-be-ex-spouse bringing an action to recover his or her equitable share.

Please contact our office immediately online or by phone to schedule an appointment with an attorney who can help navigate through these sensitive and troublesome issues. We are available at 732-440-3950 to immediately assist you.