A client came to my office a few years ago in a state of quiet panic. Her new husband of three years had passed away suddenly. In his desk, she found his will—signed and witnessed a decade earlier—which left his entire seven-figure estate to his first wife. He had simply never updated it after their divorce and his subsequent remarriage. Now, she was facing a protracted and painful battle in Manhattan Surrogate’s Court against a woman he hadn’t spoken to in years.
This is not a rare story. In my practice, I’ve seen versions of it play out time and again. Major family law events—divorce, remarriage, the birth of a child, an adoption—are precisely the moments when an estate plan is most vulnerable. A will or trust is a snapshot of your life and your intentions at a specific moment. When the family picture changes, the plan becomes a relic, one that can create unintended consequences and generational conflict.
Divorce and the Limits of Automatic Protection
Many New Yorkers are surprised to learn that the law offers a baseline level of protection after a divorce. Under New York’s Estates, Powers and Trusts Law (EPTL) § 5-1.4, a divorce automatically revokes any dispositions or appointments made to a former spouse in your will. The law treats your ex-spouse as if they had predeceased you.
This sounds straightforward, but the protection it offers is dangerously incomplete. That statute applies to your will—but it does not automatically apply to other critical instruments of wealth transfer. The most common oversights we see are:
- Retirement Accounts: Beneficiary designations on 401(k)s, IRAs, and other ERISA-governed plans are controlled by federal law, not state law. The EPTL does not touch them. If your ex-spouse is still named as the beneficiary, they—not your new spouse or your children—will receive those funds.
- Life Insurance Policies: Like retirement accounts, a life insurance policy pays out to the named beneficiary. The contract governs, and a state probate law revoking a will provision has no effect on it.
- Trusts: While the law revokes bequests to an ex-spouse in a will, its application to trusts can be more complex, particularly with irrevocable trusts.
Relying on the automatic provisions of the law is not a strategy. It’s a gamble. A deliberate, intentional review of every single asset and its beneficiary designation is the only prudent course of action following a divorce. Stewardship.
The Unique Challenges of Remarriage and Blended Families
When you remarry, especially when there are children from a previous relationship, your goals often become twofold. You want to provide for your new spouse, but you also want to ensure the legacy you’ve built ultimately passes to your children. These goals can sometimes be in tension.
A simple “I love you” will leaving everything to the new spouse can inadvertently disinherit children from a prior marriage. Once those assets belong to the surviving spouse outright, they are free to do with them as they wish—including leaving them to their own children or a future spouse. It may not be malicious, but it’s an outcome that few people intend.
This is where intentional trust planning becomes essential. For many of our clients in blended families, we establish trusts that create a clear, legally enforceable structure for their assets. A common instrument is the Qualified Terminable Interest Property (QTIP) trust. This type of trust can provide the surviving spouse with all the income from the trust’s assets for their lifetime. They are cared for and can maintain their lifestyle. But the trust dictates what happens to the principal upon their death—it is distributed to the children from the first marriage, as originally intended.
This isn’t about a lack of trust in a new partner. It’s about clarity and the responsible stewardship of generational assets. It ensures your intentions are honored, regardless of who survives whom or what might happen in the future.
Appointing a Custodian for Your Most Important Legacy
The birth or adoption of a child is a joyous occasion, but it also introduces a profound contingency to plan for. If something were to happen to you and your spouse, who would raise your child? Who would manage the inheritance you leave for them?
These are two distinct roles that must be addressed in your will. The guardian is the person who will have physical custody of your minor child—the person who will make decisions about their schooling, healthcare, and upbringing. The trustee or custodian is the fiduciary responsible for managing the financial assets you leave behind for that child’s benefit until they reach an age you deem appropriate.
Failing to name a guardian in a will means a judge who does not know you or your family will make that decision. It is perhaps the single most important reason for a young family to have a will in place. You know who shares your values. You know who has the temperament and ability to care for your child. Putting that name in a legally binding document is a fundamental act of parental responsibility.
Your family structure is not static. It evolves. Your estate plan must evolve with it. An old plan is often more dangerous than no plan at all because it provides a false sense of security while creating outcomes you never would have wanted. If your family has undergone a significant change, your documents require an immediate and thorough review.
The first step is often the simplest. If you’ve experienced a divorce, remarriage, or the birth of a child, I recommend gathering all your existing beneficiary designation forms for life insurance and retirement accounts. We can then perform an audit against your current will and trusts to ensure your plan is cohesive and accurately reflects your present-day intentions for your family.
