Estate planning can be straightforward for many people, who require only a simple will with beneficiary designations for their needs. However, this is not always the case. For some individuals, changing life circumstances and challenges can introduce complications into a simple estate plan, leading to much confusion and difficulty. Divorce and shifting finances can lead to many different estate planning, as beneficiary designations and surviving spouse rights are up in the air.
While this may be challenging, dying without a will may be even worse. If a spouse dies intestate, which is the legal term for dying without a will, their assets will be divided according to state and federal law. During a divorce, this may mean that the individual is at risk of their soon-to-be ex-spouse inheriting a significant amount of their estate. Dying without a will during a divorce could be catastrophic for an individual’s legacy.
A skilled family lawyer in Meredith County, Laconia County, and Belknap County, New Hampshire, may be able to explain the consequences of dying intestate during a divorce. Consider speaking with an attorney from Friedman & Bresaw, PLLC today by calling the office at (603) 707-4800.
Dying Intestate
Without a will, an individual’s estate is subject to New Hampshire and federal laws regarding succession and inheritance. This generally looks like a certain percentage of the estate and certain specific assets like homesteads and more going to specific family members. These inheritances are determined in probate court, which is a lengthy and often heavily taxed process. According to N.H. Rev. Stat. § 561:1, if a spouse dies with no children from their relationship, the surviving spouse inherits the entire estate. Even with children, the surviving spouse may inherit up to the first $250,000 and half of the remaining balance after that.
Automatic Revocation in Divorce
One of the effects of an official divorce decree is an automatic revocation of certain rights and spousal entitlements after the divorce. Bequests in a will, surviving spouse rights, and certain inherent decision-making powers are automatically revoked upon divorce. This means that a divorced spouse may not be able to claim any of their ex-spouse’s estate if the other spouse dies. However, these changes do not take effect during a divorce, but after. This means that, if a spouse dies without a will before the divorce is finalized, these changes are not yet in place.
Does a Pending Divorce Prevent a Spouse from Inheriting?
A pending divorce does not prevent a spouse from inheriting if the other spouse dies without a will. If a spouse dies during a divorce, the marriage is considered to be ended due to death, not divorce. This means that the division of the estate will be treated as such, with the surviving spouse receiving a certain amount of the inheritance. This is one reason that having and regularly updating a will is a key facet of estate planning.
Dying intestate removes a great deal of control from the decedent’s hands, which means their wishes may not be addressed in the division of property. The New Hampshire probate process, as outlined by the New Hampshire Circuit Court Administrative Office, can take months and is not always optimal for beneficiaries or the decedent. Dying without a will during a divorce is just one situation in which the state intestacy laws may not favor the decedent.
For more information, consider speaking with a Laconia County family lawyer from Friedman & Bresaw, PLLC, also serving Meredith and Belknap counties.
Surviving Spouse Rights
Dying without a will during divorce may cause an individual’s estate to default to state intestacy laws, which often include surviving spouse rights. These rights are common in many states, essentially defining what a surviving spouse is entitled to if a spouse dies intestate. Surviving spouse rights may also affect the creation of a will or trust as well. Understanding surviving spouse rights in New Hampshire may help inform individuals of the potential consequences of dying without a will during a divorce.
Asset Distribution According to Marital Status
If an individual dies without a will, their estate is generally divided according to their family relations. This generally includes descendants, parents, siblings, and their spouse, and the amount of the estate given to each is determined by which are present. Children and the spouse have the first claim on an estate due to New Hampshire’s intestacy laws, though the spouse usually claims the larger share in this instance. If either a spouse or children are not present, the remaining estate after they have taken their share may go to parents or siblings who are eligible to inherit.
How Does Pending Divorce Impact a Surviving Spouse’s Rights?
In short, a pending divorce does not impact survivorship for a spouse, even if the divorce is nearly complete. The change in marital status does not take effect until after the divorce is finalized, which means that spouses are still married during a divorce process. Therefore, dying without a will in the middle of a divorce process will allow the spouse to collect a large share of the estate.
This is another reason that creating and updating estate plan documents regularly can help protect an individual’s financial desires and legacy. If the testator updates their will during a divorce to protect their wishes, they may have a greater chance of protecting their estate from an ex-spouse. Creating a will is a simple process for most individuals, and can help ensure that their estate is divided according to their wishes, even during a divorce. A skilled Belknap County family law attorney may be able to inform individuals of how divorce can impact estate planning.
Contact a New Hampshire Family Lawyer
New Hampshire intestate succession laws may not adequately protect the best interests of the decedent, and as such may not be a desirable outcome for their financial legacy. During a divorce, many may benefit from taking steps to secure their legacy if one spouse dies during the process. If dying without a will would greatly harm your financial legacy, you may consider speaking with a skilled New Hampshire family law attorney from Freidman & Bresaw who serves Meredith County, Laconia County, and Belknap County. Consider scheduling an initial consultation with an attorney today by calling the office at (603) 707-4800 for more specific details.
One Response
My father passed away December 28th just over a year ago. They were almost finished with the divorce. The division of assets was filed with the courts. He left behind three sons and my mother refuses to part with any of the money he worked so hard to make to us. I need to know what I can do. Thank you.