Divorce is never easy, and the last thing that someone going through it wants to think about is their estate plan. However, if a person dies or becomes incapacitated prior to the final divorce decree, unwanted disposition of assets may occur. In California, the law states that dissolution (divorce) or annulment of a marriage revokes any bequests that your will made to your former spouse. (Cal. Probate Code § 6122). However, the law doesn’t take effect until you have a final divorce decree—if you die during the divorce process, gifts to your spouse are still valid.

Estate planning during a divorce is often a temporary measure.  At the very least, we recommend preparing or updating your Advance Health Care Directive for medical emergencies and your Durable Power of Attorney for financial decisions. Additionally, you may create a new Trust, setting forth your distribution plan; however, funding of your Trust will need to wait until the divorce is finalized. 

Once a divorce is finalized, steps must be taken to fund or completely update your estate plan, including updating your beneficiary designations.  If your ex-spouse is named as the beneficiary on your 401k or IRA and you never update your beneficiary designation, your ex-spouse stands to inherit these assets.  This can result in litigation and serious unintended consequences.

If you or someone you know is going through a divorce, please contact our office to determine what steps you can take to update your estate plan to reflect your true wishes.