No one wants to think about divorce when they're getting married, and they usually don't want to think about dying after they're married either. Fortunately, estate law makes some accommodations for human nature. In California, the law is complicated somewhat by the fact that it's a community property state, but the legislative code is relatively clear about what you can and cannot do when you're planning your estate and facing divorce.
After your divorce, if you neglect to revise your will accordingly, you have nothing to worry about in California. The law treats your ex as though she predeceased you. If you named her as executor of your estate, the law bars her from serving in this capacity post-divorce. If you left her your entire fortune, she can't have it. The situation is a bit more complicated while your divorce is pending. Under California law, you can only bequeath your half of community or marital property to someone other than your spouse. She owns the other half and you can't give away what's hers, although you can give your separate property to anyone you like. This includes, for example, assets acquired before or your marriage, or by gift or inheritance. California allows you to amend your will before your divorce is final. If you don't do so and you die before the court enters your final decree, your spouse will receive everything you left to her, even if it includes your separate property.
If your trust is revocable, California allows you to undo or revoke it as part of divorce planning, but you must be careful how you go about it. An automatic restraining order goes into effect as soon as you file for divorce. It prevents you from modifying your existing trust or funding a new one during the divorce proceedings, although you can create one and leave it empty until after your divorce is final. You might be able to revoke your trust instead by serving written notice on your spouse that you intend to do so. Revoking it won't remove the property from the marital estate – if they’re community assets, they're still divisible in your divorce proceedings – but you can at least protect your half of community property and your separate property by voiding your trust if you named your spouse beneficiary of these assets. If you created an irrevocable trust instead, you'll need the help of an attorney well versed in both estate and divorce law. These trusts are technically forever, and you can't revoke or change them except in some isolated circumstances.
You can't change the beneficiary on your retirement plans in California – at least not until your divorce is final – without your spouse's consent. If you neglect to do so after your divorce, the beneficiary designations will override the terms of your decree or even your will. If you named your spouse, she'll receive the asset, regardless of the fact that you've parted ways. She's entitled to 50 percent of the marital portion in California as part of your divorce anyway, but if you neglect to change the beneficiary designation, she could end up with the entire plan when you die. The marital portion is that which you contributed after you got married but before you separated.
Non-probate assets are those that pass to your spouse by contract or by some means other than your will, and California law severs some of these rights in the event of divorce. The terms of payable-on-death accounts are terminated when you divorce if your spouse is named as the survivor, and if you hold property as joint tenants with rights of survivorship, your divorce extinguishes the survivorship rights. Before your divorce is final, however, these assets are vulnerable unless you receive your spouse's consent to change the designations. Retirement plans also bypass probate, but they're largely governed by federal law, not state law. Therefore, the beneficiary designation on these accounts would prevail, even after your divorce.
Video of the Day
- Law Offices of Shahram Miri: Divorce and Community Property
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- Jennifer Cowan: Estate Planning and Divorce
- Nolo: If You Don't Want to Leave Retirement Accounts to Your Spouse
- Law Offices of Shahram Miri: Community Property in California
- California Bar Journal: Amending Irrevocable Trusts