If you created your will while you and your spouse were still getting along, it may be time to change it. You may not want to leave your entire estate to an estranged spouse, but since marriage is a legal relationship, it affects your spouse’s legal rights to your estate. While you are still married, your spouse has a right to a share of your estate under New York law, but once you actually divorce, the rules change.
To create a valid will in New York, you must be at least 18 years old and of sound mind. This is called testamentary capacity and it means you understand what you are doing as well as the nature and extent of your property. You must sign your will in front of two witnesses who must also sign the document. Your witnesses must be able to testify later, if asked, that you knew you were making a will and had the proper mental capacity to make it.
Effect of Divorce
As long as your will meets New York’s requirements, it is valid as soon as you and your witnesses sign it, and it remains valid even after you divorce, even if it contains terms related to your spouse. However, any provisions that benefit your spouse are voided, even if you do not amend your will to void them after your divorce. For example, if your will gave your entire estate to your spouse and listed your children as alternate beneficiaries, the will remains valid and only the portions related to your spouse are voided. Thus, your children inherit your entire estate.
Separation does not terminate spousal rights in the same way that divorce does, so your will’s terms are not necessarily voided by a separation. Your estranged spouse is still entitled to any bequest in your will unless a formal decree of separation terminates that right. However, you can simply change your will to avoid having your estranged spouse inherit the share you originally intended to give him. For example, if your most recent will gave everything to your spouse, you can simply change the will to leave him a smaller share.
New York law does not allow you to disinherit your spouse under most circumstances, even if you are separated or specifically state in your will that you wish to disinherit your spouse. New York gives surviving spouses a “right of election,” which is an automatic right to a certain portion of your estate, just because you were married at the time of your death. This right of election entitles your surviving spouse to $50,000, or one-third of your net estate if your estate is worth less than $50,000. However, you and your spouse can decide to eliminate this right under the terms of your separation agreement.