{3 minutes to read}  Divorcing couples rarely think to address the subject of Wills and estates. In the divorce mediation process, these issues can be addressed and worked through before the parties meet with their trusts and estates attorneys. If they wish, the attorney may be present for this conversation in the mediation session. Attorney George Bischof has assisted some of my clients in this way. I reached out to him recently to ask some questions regarding Wills, trusts, estates, and divorce.

1. Would you recommend that couples going through divorce create Wills or update their existing Wills during the divorce process or after they are divorced? And why?

I believe that everyone should have a Will that reflects their current wishes as to what happens to their property and children after death, so naturally, that includes couples who are going through the divorce process. I would imagine that for most individuals moving towards divorce, their partner will no longer be their primary beneficiary, but rather their children, other family members, or friends. If a person passes before a divorce decree is executed and signed, there may be a disparity between the Will of the decedent and the legal rights of the soon-to-be ex-spouse. This is why it is always best to have a Will that records one’s after-death wishes and to keep choices about guardians and trustees for minor children current.

2. If a husband and wife decide to keep a jointly owned home after their divorce, how do they handle it in their Wills?

The language in a Will might depend upon factors such as:

•How will the house be owned after the divorce? Is there an automatic right to inherit as with a “jointly owned home with rights of survivorship?”

•Will either owner have the right to continue, or to start occupying the house following the death of the first owner?

•Are there any specific provisions in the divorce agreement/decree such as “the house must go to the children of the marriage?”

In every case, if a separated couple decides to keep a jointly owned home, a good estate planner should be able to properly capture their intentions in their Wills.

3. Does it make sense for divorcing couples to work with the same estate planner?

Attorney professional ethics can be rigid about separate or joint representation, but they do allow for some flexibility. With appropriate disclosure and mutual consent, divorcing couples may retain the same estate planning attorney for their new separate Wills. 

Some issues will be kept private and subject to confidentiality rules such as for gifts/legacies, ultimate contingent beneficiaries, and choice of executors. Other matters such as the choice of guardians for minors and trust provisions for the children of the marriage will benefit from full transparency between the parties. Clarifying the terms of a part-joint/part-separate representation may require some time and energy at the outset, but coordinating the planning around the children can be most beneficial.

George Bischof, Esq. Headshot

George Bischof, Esq.
Bischof & Bischof LLP
George@bischoflegal.com
(212) 867-9120
New York, NY 10165 

Jennifer Safian

Jennifer Safian

jennifer safian. divorce and family mediator
divorce and family mediation
upper east side of manhattan (nyc)
new york, ny
(917) 881 5206
jpsafian@gmail.com
Jennifer Safian

Latest posts by Jennifer Safian (see all)