Getting a divorce isn’t a decision that is taken lightly, but sometimes it’s the only way for both parties to move forward.
Divorce proceedings typically focus on key matters like dividing property and making custody arrangements, but estate planning after divorce is often overlooked.
However, the reality of estate planning and divorce is that you’ll need to spend some time managing your estate plan in order to protect your assets and ensure your loved ones are taken care of, before you can move forward confidently.
At the Law Office of Vidhya Babu, we assist Bay Area clients with estate planning, including guidance in estate planning after divorce. In this article, we’ll explain the steps involved in updating a will after divorce, and why working with an experienced estate planning attorney is essential.
What Happens to Your Estate Plan After Divorce in California
Many California residents have made the mistake of thinking that once a divorce is finalized, your former partner is automatically removed from your estate plan. While California law does provide some automatic protections, there is a lot of nuance to the matter.
Under California Probate Code, certain provisions that benefit your ex-spouse are automatically revoked. This includes:
- Any gifts left to them, such as property, money, or other assets.
- Roles as executor or trustee
- Authority as durable financial power of attorney
These changes take effect once your divorce is finalized, and the law treats an ex-spouse as if they died before you.
While this removes them from those responsibilities listed above, it doesn’t automatically fill in the gaps left behind.
Certain aspects of your estate plan are not automatically updated after a divorce. This includes:
- Beneficiary designations in non-will assets such as your retirement plans, life insurance policies, payable-on-death, and transfer-on-death accounts
- Advance health care directives, which must be updated manually
- Revocable living trusts, which should be formally amended to confirm the removal of an ex-spouse and appoint a replacement trustee.
Because these and other important distinctions are not automatically updated after divorce, your estate plan must be updated with the help of an estate planning attorney. Only then can the gaps be filled to reflect your current wishes.
Estate Planning and Divorce: What Does Not Change in California
While California Probate Code does automatically revoke some provisions, it does not update your estate plan or replace your ex-spouse with anyone else.
Without proactively updating your estate planning after divorce, your will could be left with significant gaps and outdated information.
Divorce does not:
- Rewrite your estate planning documents
- Automatically replace your ex-spouse as executor or trustee
- Update property ownership titles
- Revoke beneficiary designations outside of wills
- Update powers of attorney or advance health directives
The best course of action is to conduct a full review of your estate planning after divorce, so you can be sure your wishes are understood.
Updating Your Will After Divorce in California
The most effective way to update your will after divorce is by consulting with an estate planning attorney who understands California probate laws.
Together, you’ll work through your estate plan, so that you can be sure your plan represents your most current wishes for how your estate should be handled after you’re gone.
Reviewing estate planning after divorce involves several steps:
1. Revoke Your Existing Will
When you create an estate plan while married, your spouse plays a central role in the plan. But following a major life change like divorce, the most sensible option is often to revoke your original will and execute a new one.
Divorce removes your spouse from certain provisions, but it leaves significant gaps in their place. Left untouched, your old will may still contain outdated language and choices that can cause confusion for your family during the probate process.
That makes revoking your existing will and starting from scratch the best choice for moving forward. Revoking your will and creating a new one ensures:
- Beneficiaries are clearly defined
- Executors and trustees are updated
- All outdated provisions are removed
Even if you revoke your entire will, it is essential that you review your documents with an estate planning attorney to eliminate gaps or inconsistencies.
2. Update Your Health Care Directives
Not every divorce ends on bad terms, but it’s likely that you’ll want to update your healthcare power of attorney as well as any advance medical directives you might have issued with your spouse.
Because these documents give another person the power to make healthcare related decisions on your behalf if you become incapacitated, you must have the utmost trust in this person.
That doesn’t mean that you can’t leave your former spouse as your healthcare proxy, but it does mean that you should think about this decision carefully and make any necessary adjustments.
3. Update Your Beneficiaries
When your ex-spouse is removed from your estate plan after divorce, there will be some gaps among your beneficiaries. This is the time to revisit who you leave your assets to, whether it is your children, other family members, friends, or even charities.
This is also a good time to revisit your designated beneficiaries for your life insurance policies, 401Ks, IRAs, and other accounts that aren’t directly included in your will. These documents won’t be automatically changed after a divorce.
Estate planning attorneys will help you ensure you don’t miss updating any of these critical beneficiary designations.
4. Update Plans for Guardianship of Minor Children
Couples with young children who are going through a divorce should consider updating their estate plans to include guardianship nominations.
While a biological parent will generally retain custody after you pass away, marriages often end due to serious issues like alcohol or substance abuse, and even physical abuse.
If you have serious concerns over how fit your ex-spouse may be as the sole provider for your children if you pass away, you should put these concerns into writing alongside your estate plan and nominate a trusted person as guardian who can step in if needed, so that a judge will consider this information.
5. Review Property Ownership
California is a community property state, which means that all assets acquired by either spouse during the marriage, including properties, are equally owned 50/50. Property owned prior to marriage, or received as inheritance or gifts, typically remains separate, but can depend on the specific situation.
After divorce, your estate plan should be updated to reflect the property division determined by the divorce judgement. Any property that you no longer retain ownership, as well as property that you have gained sole possession of should be accounted for in your post-divorce estate plan.
If your estate plan is not properly updated after to align with the divorce judgement, there can be significant confusion about which assets are actually yours and they are to be passed on, which can cause delays during probate.
When Should You Update Your Estate Plan?
When you are certain that the best way forward for both parties is divorce, estate planning should begin during separation and be completed once the divorce is final.
While you can revoke or change your will while the divorce is still in process, there are limits to what you can actually do. In particular, you cannot:
- Disinherit your spouse from community property until the divorce has been finalized
- You cannot restructure your estate to hide property and marital assets from your spouse
For example, you can create a new trust while the divorce is in process, but you cannot fund it with community property (property jointly owned by both spouses) without consent from your spouse.
It’s also important to consider what happens if you pass away before the divorce is finalized. Under California law, your spouse will still be legally entitled to their share of community property. However, you can update or create a new estate plan that leaves your separate property as well as your share of community property to a beneficiary of your choosing.
Because there is so much nuance to the rules of divorce and estate planning, your best bet is to begin consulting with an estate planning attorney once you begin divorce proceedings. Your attorney can guide you through the process of estate planning after divorce, and quickly finalize your new will to prevent gaps from forming in your estate plan.
How The Law Office of Vidhya Babu Can Help
Estate planning and divorce in California is complicated, but that’s where guidance from an experienced estate planning attorney is invaluable.
The Law Office of Vidhya Babu is ready to help you:
- Revoke, modify, or create a new will or trust in accordance with California law
- Remove your ex-spouse from health and financial decision making capacities
- Review all your beneficiary designations including assets that pass outside your will, such as life insurance and retirement accounts
- Plan for your children’s inheritances, as well as potential guardianship
- Ensure your current wishes are represented in your estate plan
With our guidance, you can rebuild your estate plan to reflect your wishes and move forward confidently.
Contact The Law Office of Vidhya Babu for Estate Planning After Divorce
Divorce is a difficult process, but neglecting estate planning after divorce can leave a messy legal situation for your heirs and family. California law does remove your ex-spouse from certain provisions, but the resulting gaps can only be resolved by updating your estate plan with the help of an estate planning attorney.
At The Law Office of Vidhya Babu, we assist in estate planning and probate. We’re here to help you make sure any gaps left after divorce in your estate plan are properly accounted for. We’ll make sure your assets are distributed to your heirs as intended, and that your most essential powers of attorney and health care directives are in the hands of people you trust.
Contact The Law Office of Vidhya Babu for an initial consultation, and let us help you update your legacy.
**DISCLAIMER**
This blog post is for informational purposes only and does not constitute legal advice. Please consult with an attorney to discuss your specific circumstances.