When you’re in the middle of a
divorce, estate planning is probably furthest from your mind. However, once the
divorce is official, you want to revise your estate plan and the sooner
the better. If you delay and something happens to you, your hard-earned
assets can wind up in the wrong hands, including your former spouse –
that’s probably the last thing you want to have happen. As soon
as your divorce is over, you should take these steps quickly to ensure
your estate plan is up-to-date and reflects your current wishes.
Revoke Your Existing Will
The best way to revoke your current will is to literally tear it up. Destroy
it. Next, you want to create a new one. If you had a living trust while
married, you want to destroy the old one and make a new, updated version.
A will allows you to: name an executor to administer your estate, nominate
a guardian for minor children, and leave your property to whomever you
choose. Each of these options may be affected by your divorce.
Under Section 6122 of the California Probate Code, it states that unless
a will expressly says otherwise, if after a will is drafted the marriage
dissolves, the divorce revokes:
- The bequeathing of property to the former spouse.
- The nominating the former spouse as an executor or trustee.
- Any provision of the will that confers a general or special power of appointment
upon the former husband or wife.
Even though you can rely on state law to prevent your spouse from receiving
money through your will, it’s not recommended. If you leave your
will alone, you’re creating some uncertainty about the property
you initially left to your former spouse. For the sake of your beneficiaries,
it’s better to draft a new will that does not leave room for questions
or encourage a will contest.
Update Your Beneficiary Designations
If you’re like a lot of people, a lot of your assets will pass outside
of a will. Those assets that involve
beneficiary designations pass outside of probate. So, if you named your spouse as your beneficiary
on any one or more accounts, you want to update your beneficiary designations
sooner than later. Update your beneficiary designations for the following accounts:
- Bank accounts
- Life insurance policies
- Retirement accounts (e.g. IRAs and 401(k)s)
- Brokerage accounts (transfer-on-death)
Did you give your spouse power of attorney should anything happen to you?
If so, you want create two new powers of attorney – one for medical
decisions and one for financial decisions. If your spouse currently has
authority to make decisions on your behalf if you become severely ill
or disabled, you want to revoke the powers of attorney and create new
We hope you find this information useful. If you need a San Diego divorce lawyer,
contact our firm to schedule a free consultation.