If you are going through a divorce, you will want to make some key changes to your estate plan as a result. Divorcing a spouse has a big impact on estate planning because most people name their spouses as heirs or beneficiaries. If you no longer want your ex-spouse to inherit, you need to change your plan.
Limiting Your Ex-Spouse’s Rights as an Heir
A California law provides that a divorce or marriage annulment revokes all bequests that you made to your spouse in your will. (Cal. Probate Code § 6122.) In other words, your ex-spouse will not automatically inherit through your will. But you should not rely on this law to protect you. Not every state has a law like this, so if you own property in other states you may not have legal protection. Plus, the California law only works after the divorce is final.
To most effectively limit your ex-spouse’s right to inherit through your will, you need to make a new will. Making a new will does not have to wait until the divorce decree is finalized. You can tear up the old will and sign a new one immediately. In your will, you may want to specifically state that your ex-spouse should not inherit anything or be the estate executor. You also may want to include a beneficiary designation so that just in case you and your ex cannot care for your children, the court will know your wish about who should be the children’s guardian.
Limiting Your Ex-Spouse’s Rights as a Beneficiary
Beyond changing your will, you should change the other legal documents that will give away some of your assets upon your death. These documents include retirement account beneficiary designations, life insurance policies, pay-on-death bank accounts, and trusts. Unlike for wills, there is no state law that revokes gifts of a life insurance payout or the contents of a P.O.D. bank account when someone divorces. You have to actively request a change of beneficiary from the company that owns the policy or holds the account.
Changing Your Powers of Attorney
If you signed any powers of attorney or an advance directive for end-of-life decisions, you should change those too. Again, you can make the changes before the divorce is final. When you no longer want your ex-spouse to be your agent for power of attorney purposes, select someone else who is close to you.
Respecting the Divorce Decree
Finally, respect the terms of the divorce decree when changing your estate plan. You should speak to both your divorce lawyer and your estate planning lawyer about how to make sure that you divide up property per the decree and meet any child support obligations.
Planning your estate? Look to Janet Brewer, Esq. for thorough and thoughtful estate planning advice. Janet’s more than 20 years of legal experience will give you confidence and peace of mind. To schedule a “Get Acquainted” meeting, visit Janet's website or call her office at (650) 469-8206.
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