If you are in the midst of a divorce, it's easy to overlook estate planning. However, doing so will protect your estate from your former spouse and give you peace of mind knowing that your wishes will be honored. If you are contemplating divorce or have recently divorced, you should review your estate plan with your attorney to determine whether changes are needed to reflect your current wishes.
This article provides a very brief overview of common issues. Please note that this is a complex area of law, so it is important to consult an experienced estate planning attorney to help in protecting yourself and your heirs in the event of a divorce.
During the Divorce Process
During the divorce process, you have limited ability to make changes or revoke estate planning documents. However, you should consider the following available options:
- Execute, update, or revoke your will - Some changes may be needed while your divorce is pending. However, note that you cannot disinherit your spouse from his or her share of the community property.
- Updating powers-of-attorney and advanced health care directives
- Name guardians for your minor child - Upon your death, your spouse will likely be given custody of your shared children. However, you can still name a guardian in the event that your spouse does not take custody.
There is a much longer list of prohibited estate plan changes, such as creating new trusts to hide assets; transferring, encumbering, hypothecating, concealing, or in any way disposing of property out of community property accounts without the written consent of your spouse or a court order; and creating or modifying a non-probate transfer without your spouse's written consent (which includes life insurance, revocable trusts, IRAs, beneficiary designations, and profit sharing pension plans).
After the Divorce Is Finalized
Once the divorce has been finalized, California automatically changes your estate plan in several ways, including: removing your ex-spouse as an heir to your property; removing your ex-spouse as an executor, trustee, and power-of-attorney; and dissolving any living trusts that your ex-spouse and you created.
You will need to update your estate plan immediately following a divorce. If you fail to do so and then pass away, it can lead to expensive and time-consuming litigation for your heirs. There are several key items to consider:
- Updating your will and living trust. This includes reviewing all beneficiaries and executors, and ensuring proper disposition of assets previously held jointly with your ex-spouse and any assets held in trust.
- Updating Power-of-Attorney and Advanced Health Care Directives. Determine who should now handle these critical decisions.
- Disinheriting your spouse from any insurance policies or retirement plans in which he/she is named as beneficiary.
- Update named beneficiaries on life insurance policies, retirement accounts, bank accounts, and other financial accounts.
Contemplating Divorce?
Considering the above, if you believe that your marriage is ending but you haven't formally filed for divorce yet, you should meet with your estate planning attorney before filing. You'll want to consider what might happen if you pass away prior to the divorce being finalized, and to evaluate beneficiary designations and other key issues after the divorce is completed
Specialized Estate Planning Expertise
If you are going through a divorce and are concerned about estate planning, Mortensen & Reinheimer, PC understands and can help you. If you need legal expertise in addressing your specific estate planning needs, please contact Mortensen & Reinheimer, PC at (714) 384-6053 to make an appointment, or use our online contact form. Our website is http://www.ocestateplanning.net.
About the author:
Tamsen R. Reinheimer, Attorney, is a Certified Specialist in Estate Planning, Trust & Probate Law (The State Bar of California Board of Legal Specialization). She has significant experience in all aspects of estate planning, trust administration, and probate. Contact Tamsen at tamsen@ocestateplanning.net.