Estate & Beneficiary Checklist During Divorce in New York

In New York, spouses are still legally married and entitled to an inheritance until the divorce is final. If you die during your divorce, your spouse may have rights to half your assets while the divorce is pending, even if you are separated, unless you have a signed waiver (discussed below).  It is crucial to speak with a New York estate planning attorney (in addition to your divorce attorney) about your specific situation.

1. While You Are Separated or Before Starting Divorce 

☐ Do you have a will or trust? If not, New York’s intestacy law will decide who inherits your assets and spouses always receive a large share in most states. 

☐ If you do have a will and/or trust: Review your will or trust to see if your spouse is named as a beneficiary, executor, or trustee. 

☐ Review your retirement accounts, life insurance, and any account with beneficiaries to see if your spouse is listed as beneficiary. You CAN remove a spouse as a beneficiary on most accounts as long as you do it BEFORE filing for divorce.

☐ Consult with a New York estate planning attorney about spousal rights and your options before filing for divorce. 

2. During the Settlement 

Most states do NOT allow you to change beneficiaries AFTER you commence a divorce action in the court.  If you desire to remove your spouse during the settlement phase or after your Agreement is signed, ensure your Settlement Agreement clearly states what inheritance and estate rights you and your spouse are waiving, if any. 

☐ Discuss and document who should be the guardian for your minor children and their inheritance. 

☐ Work with an estate planning attorney to see how the divorce may affect beneficiary designations and joint accounts under New York law and federal rules (such as ERISA for certain retirement plans) and how to ensure spousal waivers are enforceable.

3. After the Divorce Is Final

Under New York laws, most gifts and roles for a former spouse in wills, trusts, beneficiary designations, and many fiduciary appointments are treated as revoked once the divorce is final, unless a document or court order says otherwise. So if you want to keep your spouse as a trustee or beneficiary, you need to update your documents to add them AFTER the divorce.  If you don’t want them added, you must update the beneficiaries to your new preferred loves one(s)

Update my will and any trusts to: 

• Remove my ex‑spouse where appropriate. 

• Add new primary and backup beneficiaries. 

• Update guardianship wishes for minor children. 

File new beneficiary forms for: 

• Retirement accounts (401(k), 403(b), IRAs, pensions). 

• Life insurance policies. 

• Any payable‑on‑death (POD) /transfer‑on‑death (TOD) accounts.

Review and, if needed, re‑sign new: 

• Power of Attorney 

• Health Care Proxy

Confirm titles and ownership on bank accounts and real estate match my divorce Judgment and my updated estate plan.  Don’t let this linger.  Transfer title to your name as soon as possible. 

Reminder: This is a general New York–focused checklist, not legal advice. Always confirm next steps with your New York divorce and estate planning professionals. 

Contact Sammartino & Sultan to schedule a consultation to discuss your specific New York matter. 

About the Author

Leslie has been practicing law since 2009 and is the host of the estate planning podcast 'Legacy Purse'. She has a long history of representing family members struggling to inherit property and/or wealth from deceased family members through the Probate Courts. Knowing how time-consuming and expensive the probate process is, Leslie takes great pride in helping her clients learn how to plan and protect their families during their lives so they can avoid the probate court process and save their loved ones that additional grief (and expense).