Estate Planning for the Married and Newly Divorced

Are you married, but want to direct the passing of your property to someone other than your spouse? Are you considering getting a divorce or already in the divorce process? Or are you recently divorced? In any case, it is important to know how marriage or a divorce in California affects distribution of your estate.

To start, there are some general rules to be aware of. If are married and you do not have a will in place, if you die, your share of the estate (one-half of the community property) will pass to your surviving spouse and your separate property will pass to your surviving spouse, per California Probate Code section 6401. This is a general rule.

Second, while a finalized Judgment in a dissolution of marriage will revoke a will, a mere separation or even filing for dissolution will not revoke a will, per California Probate Code section 6122. So, essentially, during the dissolution process, the parties remain married and have all the benefits provided to a spouse by law in the event of death, per California Probate Code section 78.

From these general rules, we can learn a lot. First, if you are married and want your share of the estate (one-half of the community property) and your separate property to pass to someone other than your spouse, you must have an estate plan in place. Further, if you are thinking of getting a divorce or in the divorce process, it is important to speak to an estate planning attorney about how you can protect your share of the estate (one-half of the community property) and your separate property until you get a Judgment. And, finally, the last lesson is to make sure to draft a new estate plan on the finalization of a divorce.

One major item to know, is that during the divorce process, while you cannot change much about how your property will be distributed, you can revoke or amend Power of Attorney or Advance Health Care Directives. You may have these documents in place, so be aware. 

A good game plan at the end of the divorce process, in order to organize your estate, would be:

1. Meet with an attorney regarding your estate and bring all old wills, trusts, and/or powers of attorney;
2. Draft a new estate plan, designed to fit your needs;
3. Organize all of your financial documents in one place, so to make your estate more manageable; and,
4. Make sure that your beneficiary designations on retirement accounts are changed after divorce, because federal law may govern distribution and a divorce or new trust may not change the designations! 

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