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If you’re getting divorced in the state of California, you need to consider how it will affect your estate plan. While divorce doesn’t need to derail your estate planning progress, you should prepare for your divorce by speaking to your attorney to make essential changes to your estate plan, in case you should become disabled or pass away before the divorce is final. That way, your estranged spouse won’t be able to control your estate if you should die before the final divorce decree is issued.
Changing Your Will in Manhattan Beach
If you don’t change your will to disinherit your estranged spouse before the divorce is final, then he or she will be disinherited once the divorce decree is issued. California state law will view your ex-spouse in the same light as if he or she had predeceased you in this situation. He or she will not be allowed to serve as executor of your will. Any provisions made for him or her in your will be rendered null and void. That means he or she won’t be able to inherit any of your money or property.
However, you should change your will as soon as you file for divorce. That’s because you’re still considered legally married to your estranged spouse until the divorce decree is final, no matter how long your separation, or its cause. California is a community property state. This means that under state law, you can only bequeath half of your marital property to a person other than your spouse; he or she owns the other half, so you can’t give it away.
You may want to change your will to bequeath your half of the marital property to someone other than your spouse, such as your children or other relatives. You may also want to bequeath any non-marital property, such as assets you had before marriage or gifts you received, to someone else. California allows you to make changes to your will after you’ve filed for divorce, and doing so will help you protect your estate in the event you should pass away before your divorce is final.
Alter Revocable Trusts
If you have created a revocable trust as part of your estate plan, you may be able to revoke it during your divorce planning. You’ll need the help of our Manhattan Beach divorce and estate planning attorneys to do this, because when you file for divorce in California, an automatic restraining order goes into effect that prevents you from funding a new trust or modifying an existing one until your divorce is final.
However, you may still be able to revoke a trust by serving your spouse with written notice that you plan to do so. This won’t remove marital property from the trust, but could give you the chance to protect any marital property, plus any separate property, that may be in the trust. If you created an irrevocable trust, however, changing it will be much more complicated.
Change Your Retirement Beneficiaries
In California, you can’t change the beneficiary on your retirement plan until your divorce is final, unless you can get your spouse’s consent. If your spouse will give consent, go ahead and change your beneficiaries right away. Otherwise, you’ll have to wait – but it’s important that you remember to change the beneficiaries on your retirement plan after your divorce decree is issued.
The financial institutions in charge of managing your retirement funds won’t know or care that you’ve gotten divorced. All they care about is who the named beneficiary is, and that designation overrides any changes in your will or even your divorce decree. If you don’t change your beneficiary designations, your former spouse could end up with all of your retirement money, even if you’ve been divorced for decades. She’ll get her half either way, but at least this way you can leave your half to your children, other relatives, or whoever else you want.
Re-Designate Non-Probate Assets
Non-probate assets include those that will pass to your spouse by means other than your will. In the event of a divorce decree, California state law will automatically sever some of those rights, including the terms of payable-on-death accounts or properties held in joint tenancy with rights of survivorship. But these assets could be vulnerable during your divorce proceedings. Automatic restraining orders may go into effect when you file for divorce that could prevent you from altering these contracts.
Write a New Will and Name a New Executor
Once your divorce is final, you should write a new will and name a new executor. If you named an alternative executor in your old will, this one will serve as your executor should you pass away after the divorce is final but before you can get around to writing a new will.
Appoint a Guardian for Minor Children
If you divorce and have minor children, you may need to change your will to reflect who you would like to serve as a guardian for those children in the event that neither you nor your ex-spouse is capable of caring for them. You probably can’t prevent your ex-spouse from getting full custody of the children in the event of your death. After all, he or she is their other parent, and will likely get the kids unless the courts declare him or her unfit.
Being declared “unfit” is harder than most people realize. It really can only happen if he or she has serious problems, such as a history of child abuse or addiction. If you don’t want your ex-spouse to have the kids in the event of your death, you can make arrangements to include your reasons within your will, so that at least the judge may consider them when assigning custody.
Change Your Power of Attorney and Living Will
If you’ve signed medical or financial powers of attorney giving your spouse control over your assets or medical decisions, these should be automatically revoked when you file for divorce. Usually, you don’t need to wait for the divorce to be final for this. However, you should talk to your divorce and estate planning attorneys about changing your living will, medical directives, and powers of attorney immediately so that you can’t fall under your estranged spouse’s control in the event you aren’t able to make decisions for yourself.
Contact an Experienced California Estate Planning Attorney Today
Divorce doesn’t have to derail your estate planning progress. Talk to your divorce attorney about making the necessary changes to your estate plan as soon as you decide to file for divorce. With the right precautions, you and your estate plan can get
through the divorce relatively unscathed. The Ledbetter Law Firm, APC is dedicated to helping individuals and families plan for their futures through all aspects of estate planning.
Contact The Ledbetter Law Firm, APC by filling out our online contact form, or call us at 310-507-7022. We’re happy to discuss your estate planning needs and any questions you might have about trusts, wills, or the probate process.