How Does Divorce Change an Estate Plan?
HOW DOES DIVORCE CHANGE AN ESTATE PLAN? Divorces are often difficult and emotional times, and the effects of the divorce on your estate plan may often be overlooked. You likely created an estate plan that left all or much of your estate to your spouse during your marriage. If you have recently divorced, you should review your estate plan with your attorney to determine whether you may need to make any changes to protect your estate from your former spouse and ensure it reflects any wishes that have changed. It is essential to consult an experienced California attorney like Mark Gullotta, who understands the impact of family changes and divorces upon estate planning.
Depending on how your estate plan is designed, your divorce may require changes to your Will, any trusts, your retirement plans, and any powers of attorney.
Reasons to Update Your Estate Plan
Wills After Divorce
California’s estate law does provide some protections regarding the effect of wills after a divorce. Under California law, your former spouse will be treated as if your ex predeceased you, while your ex will be prohibited from serving as the executor of your estate even if named in your Will.
Suppose you have a Will naming your spouse as your beneficiary. In that case, it may be necessary to immediately have your Will amended to remove your spouse to prevent your ex from receiving all of your property in the event you die before the divorce becomes final. While California law protects if you forget to change your Will after your divorce, these protections will generally not apply if you die before your divorce becomes final. It is advisable to consult an experienced estate planning attorney while your divorce is pending to discuss amending your Will in addition to the rest of your estate plan, as some changes may be needed while your divorce is pending. At the same time, other amendments may not be possible until after the divorce has become final.
Trusts
The impact of your divorce on your trust generally depends upon whether the trust was revocable or irrevocable. For irrevocable trusts, you will need to contact a skilled California lawyer with experience in estate law as amending an irrevocable trust is especially difficult. As their name indicates, irrevocable trusts are intended to be permanent, meaning you are generally unable to amend or revoke the trust except in minimal and rare instances.
However, if your trust is revocable, California law allows you to amend the trust to reflect your divorce’s impact on your estate plan. You may be unable to modify or revoke the trust until your divorce becomes final. Once your divorce does become final, you can change the beneficiary of a revocable trust to ensure the former spouse cannot receive more than their share of the assets.
Retirement Plans and Divorce
Under California law, your retirement plan cannot be changed while your divorce is pending unless your spouse consents to the change. However, once the divorce is final, you should immediately consult an attorney about changing the beneficiary on your retirement plans to remove your former spouse. If you fail to update your retirement plans after your divorce, your former spouse could receive the entirety of your retirement plans after your death.
Powers of Attorney
In addition to ensuring your property will be appropriately distributed according to our wishes following your divorce, you may also need to consult with an attorney to review any existing powers of attorney and revoke any granting of power of attorney to your former spouse. Failing to revoke these powers of attorney could result in your ex making financial or health care decisions on your behalf if you become incapacitated.
Our Attorneys Can Modify Your Estate Plan for Divorce
If you have recently gone through a divorce, you should contact the Law Office of Mark Gullotta as soon as possible to discuss the need to change or update your estate plan to ensure that it will reflect your updated wishes. Doing so immediately after your divorce can often save severe headaches in the future. Mark Gullotta has years of experience helping clients understand the impacts of divorce on estate plans under the California Probate Code and can walk you through your options and which changes suit your needs.