New York Divorce Lawyer & Attorney : Clement Law Firm : Family Law Serving Manhattan, Westchester County, Brooklyn, Queens, Bronx, New York City

Phil Bernstein, in his New York Probate Litigation Blog, highlights several issues about the impact on divorce on an estate plan. In his post, Phil reminds us of the importance of finalizing the divorce settlement as soon as practicable.

Most settlement agreements contain provisions wherein each spouse waives their respective rights of election and any interest in the other’s estate. If you should die before an agreement containing these waivers is signed or before the court enters a judgment of divorce, your estranged spouse can (and probably will) exercise the right of election and inherit from you.

I had at least one case wherein a wife prolonged the divorce because her husband was ill and she was gambling that her husband would pass away before the divorce was granted and her right of election was extinguished.

The only way to ensure that your estate goes to your intended beneficiaries and not your estranged spouse is to make sure that the divorce settlement agreement is promptly signed.

Mr. Bernstein aptly suggests that you check all of the beneficiary designations of your insurance and retirement plans. If your former spouse is named as a beneficiary, he/she will be paid when you die

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The New York Probate Litigation Blog highlights the recently decided case of Estate of Joseph Menaham, in which a widow’s attempt to nullify a pre-nuptial agreement was rejected by the Surrogates’ Court.

Prior to marriage, the wife, now a widow, was diagnosed, hospitalized and treated for a bipolar disorder. Following her release, she entered into a pre-nuptial agreement in which the parties each agreed waived their rights to election against the other’s estate. The right of election is a statutory protection which prevents one spouse from dis-inheriting the other.

Following her husband’s death, the widow sought to set aside the pre-nuptial agreement claiming that the bipolar disorder left her unable to knowingly execute the prenuptial agreement.

Surrogate Lopez-Torres noted that a "duly executed prenuptial agreement is given the same presumption of legality as any other contract, commercial or otherwise. It is presumed to be valid in the absence of fraud." The court further referred to section 5-1.1-A(e)(2) of the Estates Powers and Trusts Law which sets forth the requirements for an effective waiver of a spouse's right of election against the estate of a deceased spouse. Such a waiver or release must be in writing, signed, acknowledged and in "recordable" form which means that such a waiver must follow the same form as would be used to provide for the recording of a deed to real property.

The Court viewed this claim with the proper amount of cynicism and found that the widow failed to prove that she lacked the competence to enter into the agreement. As noted in the New York Probate Litigation Blog, the widow earned a professional degree during the marriage and never challenged the validity of the agreement until her husband’s death.

The real focus of the inquiry must be was the wife competent at the time she entered into the agreement. While her mental capacity before and after she signed the agreement may be of some probative value, it should not be dispositive of the issue. If a person could avoid the intended, but harsh consequence of an agreement merely by alleging that at some prior time, he suffered from metal illness, every agreement would be at risk to a subsequent challenge.

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