When going through divorce, most people think of child custody, division of assets, or support payments; estate planning is an area that is often overlooked. If you were to die before your divorce was finalized, the following would occur:
- If you do not have a will, then your spouse will be entitled to at least 50% of your assets if you have children. If you have no children, the person you were in the process of divorcing would receive 100% of your estate.
- If you have a will, or other estate planning documents, such as a trust, your spouse will probably serve as executor or trustee and will be a beneficiary entitled to a large portion of your assets.
- If you have life insurance, your spouse is likely the named beneficiary and would receive the entire life insurance payout.
- If you have any real property held in joint tenancy, or as community property with right of survivorship, your spouse will automatically become the sole owner of such property upon your death.
Further, if you have documents such as an advance health care directive or medical power of attorney naming your soon-to-be former spouse as your agent, they will be able to make medical decisions on your behalf should you become incapacitated or temporarily unable to make such decisions yourself.
As soon as you file for divorce in California, you should consider:
- Revoking your will and creating a new will.
- Revoking your living trust. You can create a new trust, however, due to an automatic restraining order the new trust cannot be funded; the restraining order will also prevent you from modifying your existing trust without your spouse’s consent or a court order until the divorce is finalized.
- Severing real property held as joint tenants with right of survivorship or as community property with right of survivorship.
- Changing your nominations for primary agent under both financial powers of attorney and health care powers of attorney or advance health care directives.
- Life insurance beneficiary designation changes are prohibited under the automatic restraining order, but these should be reviewed either prior to filing for divorce or as soon as the divorce is finalized.
Any changes to your estate planning documents should be discussed with and reviewed by an attorney to ensure that required formalities for both revocation and execution of documents are followed and that you are not violating the automatic restraining order in place under California law.
The materials appearing on this blog are provided for informational use only, and are in no way intended to constitute legal advice or the opinions of Suzuki Wuori, LLP or any of its attorneys. Transmission or receipt of any information from this website does not create an attorney-client relationship, and you should not act or rely upon any information appearing on this website without seeking the advice of an attorney.
