Estate Planning for Divorced Spouses

Divorces happen. That much is obvious. Why they occur, and how frequently, is a bit more nuanced. And we can leave that for another law firm’s blog. If you’re divorced, or considering a divorce, remember to update or create your estate plan accordingly. For a quick refresher on marriage in California, read our prior post.

Untangling a marriage can be emotionally draining, legally complicated, and sometimes overwhelming. That being said, having a plan in place in case something happens to you either before, during, or after a divorce should not be moved to the back burner.

In California, divorces can take months to years to complete. A lot can happen during that time, even if the divorce is an amicable or “straightforward” divorce. Additionally, all divorces in California trigger what are called “automatic temporary restraining orders” (ATROs). When either spouse files a petition for dissolution (that’s legal speak for divorce) and serves the papers on the other spouse, the ATROs are triggered requiring both spouses to maintain financial status quo. The ATROs help prevent one or both spouses from emptying out bank accounts, or transferring assets to third parties without the other spouse’s knowledge and consent.

The following issues should be considered in light of the ATROs described above. You should always consult your family lawyer before taking any action during a divorce.

Guardianship of Minor Children

You can divorce a spouse, but you cannot terminate your ex-spouse’s parental rights over your children. If something happens to either of you, the surviving parent typically becomes the sole legal guardian of the children. Keep that in mind when making guardianship decisions in your estate planning documents during and after your divorce. Your guardianship designations do not supersede your ex-spouse’s parental rights. It doesn’t matter how much or how little visitation the surviving parent has or had.

Nominating Your Ex Spouse

If your ex-spouse is listed as an agent or beneficiary in any of your existing estate planning documents, you should review the designations carefully and immediately. Your documents likely do not have any provisions addressing a divorce. Similarly, if your retirement assets, life insurance policies, or any other assets with beneficiary designations list your ex-spouse as the beneficiary or successor owner, consider updating those designations as well. Updating beneficiary designations could violate the ATROs. Please consult with your attorney before taking any action.

Revoke Joint Documents and Address Joint Assets

If you created a joint living trust with your ex-spouse prior to the divorce, you should consider revoking the trust. If you both agreed to hold assets jointly, either during or after divorce, consider drawing up a written agreement documenting the terms of your joint ownership.

Create An Interim Estate Plan

If you’re in the middle of divorce proceedings, you still need an estate plan. It needs to reflect that you are currently legally married (you will not be legally divorced until the court enters judgment), but that you are working towards not being married. You can create a will that distributes whatever you do own to the individuals or organizations that you care about. For example, that last thing you probably want is for assets you intended on going to your children to end up in the hands of your ex-spouse instead. You should also create a durable power of attorney that specifically allows your agent to work with you family law attorney to complete the divorce on your behalf in the event you are unable. You can create a separate living trust while you’re still married, but you’ll need to obtain a judgment dividing your assets before you can fund your living trust. This also means that if you’re funding a separate living trust during a divorce, it could violate those ATROs as well. For many divorcing couples, a will, power of attorney, and healthcare directive is a solid interim estate plan until the asset issues are resolved.

Everyone needs an estate plan. If you’re divorced or divorcing, it’s imperative that you document your wishes, and act with care and nuance when it comes to your transitioning family dynamics. Schedule an estate planning consultation with a competent attorney, and consult with your family law attorney throughout the process.