Understanding “I Love You Wills” in New Jersey

If you are married and creating or updating your estate plan, you may be considering “I love you Wills.” Essentially, this type of Will leaves all your personal belongings to your spouse in the event of your death, and vice versa.

For many married couples, “I love you Wills” present a more straightforward approach to estate planning — you love your spouse, you leave everything you have to him or her and that’s that.

Yet clients considering “I love you Wills” often wonder, what happens to my Will if my spouse and I get divorced? First of all, you should update your Will during any major life event — births, deaths, new jobs and divorce just to name a few. However, what if you fail to update your Will after divorce? Does your ex still get everything? Fortunately, the State of New Jersey has laws in place to protect divorcees who previously had an “I love you Will” in place.

According to N.J.S.A. § 3B:3-14, there is a revocation of probate and non-probate transfers by divorce or annulment. So, let’s say you are happily married and have an “I love you Will” in place. Then, at some point down the road, you and your spouse get divorced but you forget to update your “I love you Will”. New Jersey law revokes any bequests made to your former spouse and they automatically pass on to your next beneficiaries.

In addition, if your ex-spouse was named the primary executor of your “I love you Will”, worry not — your Will would be probated by the next person you named as executor of your Will. There are only a few ways to “revive” the bequests to spouses in “I love you Wills” after divorce in New Jersey and they are as follows:

1. Remarriage;
2. Revocation or nullification of the divorce; or
3. The execution of a Will or Codicil after divorce.

The statute also revokes any survivorship claims either spouse has in a joint asset. This means that if you and your ex-spouse owned a piece of real estate together, your stake in the property would pass to your other beneficiaries and not to your surviving spouse. N.J.S.A. § 3B:3-14 also revokes the beneficiary rights of your former spouse to your life insurance policy unless otherwise specified in your divorce agreement.

There is no perfect Will for married couples — every relationship is different and requires its own custom tailored estate plan. Whether you are considering an “I love you Will” or need help updating your current estate plan, it is in your best interest to contact an estate planning attorney.

To discuss your NJ estate planning matter today, contact Alec Borenstein, Esq., at alec@bmcestateplanning.com, or call 908-236-6457.