When going through a painful divorce, updating your estate plan may be the last thing on your mind. However, considering the many changes that happen in your life due to a divorce, we recommend that you consider making corresponding changes to your estate plan as soon as you can.
There are a number of reasons why you need to make changes. First, if your former spouse stands to inherit under your current estate plan, a pending divorce does not extinguish his or her inheritance rights. Only a divorce decree invalidates all gifts to a former spouse made in a will. The divorce decree also revokes any appointment of the former spouse as executor, trustee, guardian, or conservator. If your will gives all or most of your estate to your soon-to-be-former-spouse, updating the will either during the pending divorce or immediately after the divorce is final will ensure that your wishes are carried out.
While divorce is pending, California law restricts the parties from moving money around and modifying “nonprobate transfers” without the consent of their former spouse or the court. The restriction applies to property such as real estate or stocks, as well as “transfers” such as revocable trusts or pay-on-death bank accounts. Cal. Family Code § 1040. As a result, making major changes to trusts and accounts should wait until after the divorce is final. In contrast, you can revoke a revocable trust after giving notice to your spouse, you can eliminate a right of survivorship to real property (a joint tenancy) without the consent of your spouse, and you can make a new will or a new power of attorney without notice or consent. Consult an estate planning attorney for more details.
After the divorce is final, we recommend that you review your entire estate plan. Check to see that the plan still reflects your wishes for the disposition of your property, and work with an attorney to make any necessary changes. If you made changes during the divorce process, make sure the rest of the estate plan takes those changes into account.
Some of the changes you may need to make include:
If you are in the middle of a divorce or just finalized the divorce decree, take a hard look at your estate plan with the help of an attorney to make these necessary changes.
Planning your estate after divorce? Angela Klenk, Esq. and the team at Beach Cities Estate Law couple personalized attention to your estate plan with big law firm experience for a winning combination to give you peace of mind. To schedule a case evaluation, visit Beach Cities Estate Law online or call (424) 400-2125.