It’s Your Funeral – A Cautionary Tale for Divorcing Spouses

The following post was written over one year ago. Laws often change and recent case decisions may impact how the law is applied. As such, the information in this article may not be current. We encourage you to contact our firm for information on this particular article and to make sure the analysis is still up-to-date.

Gary-Botwinick_selects-_B1A1650r_8-17-200x300The Kennedy Family has been in the news for more than 80 years, since Joseph P.   Kennedy Sr. was a United States Ambassador.  And with the history of the family, there have been no shortage of “teachable” moments from which the public could learn how to and how not to act.

Most recently, the tragic suicide of Mary Richardson Kennedy, estranged wife of Robert F.Kennedy, Jr. teaches an important lesson about making your wishes known upon death.

RFK, Jr. and Mary were in the midst of a bitter divorce when she committed suicide in her NY State home.  For the two years prior to her death, Mary and Robert Kennedy had been separated.  In the days leading up to her suicide, the divorce proceedings had become particularly nasty.  So, as is typical in these situations, when Mary died the feud between the families did not die with her.  For some reason, RFK, Jr. wanted to have control over Mary’s burial.  Needless to say, Mary’s family was quite upset, and her brothers and sisters went to court to block RFK, Jr. from claiming Mary’s body.

While there is no mention of whether Mary had a Last Will and Testament or other documents which would have provided her wishes upon her death in the newspapers, this is where the teachable moment comes in.   Even if Mary DID have a Will while she was married, once it was clear that the marriage was over, and the divorce proceedings began, Mary should have spoken with a knowledgeable trusts and estates attorney to make sure that her Will, Living Will, Power of Attorney and other ancillary documents were updated to conform to the changing circumstances in her marriage and her wishes.

Without an instruction in her Will, in New Jersey, the statutes provide that if an individual fails to appoint a person to control the funeral and disposition of their remains in a Will, then the right to control such matters is given by the surviving spouse, unless there is a temporary or permanent restraining order issued against the surviving spouse. N.J.S.A. 45:27-22.

That means, even if you are going through a divorce, but are not yet divorced, the right to control your funeral arrangements remains with your spouse.  Just as troublesome is that similar laws apply with respect to the disposition of your estate under your Will.  In other words, your spouse, even though you are in the midst of a divorce, may have a significant interest in your assets.  Since this is unlikely to be consistent with your wishes, you should make sure to update your estate planning documents.

Please let this story be a wakeup call.  Always have your wishes respected by making sure, on a regular basis, regardless of whether you are getting divorced or not, that your Wills and other estate planning documents are up to date.

by Gary R. Botwinick, Esq.

– See more at: http://www.einhornharris.com/familylawblog/2012/06/01/it%e2%80%99s-your-funeral-%e2%80%93-a-cautionary-tale-for-divorcing-spouses/#sthash.yS6TSwP4.dpuf