Last Will and Testament


Neal Bartlett Feb. 20, 2020

Your Divorce Decree: The First Step in Estate Planning

You have recently divorced your spouse and the judge has signed the divorce decree. Now what? Although you may feel as though you have spent enough time and money on lawyers, there is one last attorney you need to talk to: an estate planning attorney. If you and your former spouse had estate planning done together previously, it is necessary for you to come in and make changes to avoid having your hard-earned money and property be distributed in a way you did not intend when you pass away. If you have not done any planning, now is the perfect time to get your affairs in order.

When you meet with the estate planning attorney, it is crucial that you bring all necessary documents, including a copy of your divorce decree. This document will be helpful in determining what obligations need to be provided for in your documents, what accounts or property you now own, and how you own those accounts and property.

What Is in a Divorce Decree?

Support obligations

Spousal or child support obligations may necessitate purchasing life insurance should you pass away before fulfilling the entire obligation. If there is a child support obligation, it may be wise to have the life insurance policy owned by a trust allowing distributions to the minor children by a trustee instead of a lump sum payout to your former spouse, who may or may not use the funds as intended. (If this is not incorporated into your decree, make sure your former spouse agrees to this strategy!)

Property Division

The divorce decree will also contain a section on the division of your marital property. This is helpful information to provide to the estate planning attorney to present an accurate picture of your current property and financial accounts.

In addition to identifying the accounts or property you now own, how you own them is incredibly important. Ownership of property previously owned by you and your former spouse as joint tenants may have changed to ownership as tenants in common under California law. This is important because before your divorce, if you had passed away, your now former spouse would have likely received your interest in the property automatically. However, now that the ownership has changed to tenants in common, when you pass away, you likely want your interest to go to your heirs. If you don’t do any planning, the interest will be transferred according to state law, which may not coincide with your wishes. As part of your estate planning, you can choose who will receive your interest and how they will receive it.

What Effect Does the Divorce Decree Have on an Existing Estate Plan?

Last Will and Testament

In California, a divorce typically revokes all provisions in your will that benefit your former spouse. Should you die before executing a new will, the law will determine who receives your money and property. Even if the gifts to your former spouse are revoked, the law may or may not revoke gifts you made to your former spouse’s family, making it very important to revise this document as soon as possible to incorporate any changes you wish to make.

Revocable Living Trust

If you and your former spouse previously had joint estate planning documents, it is important to review it and make any desired changes, as like wills, gifts to your former spouse’s family as beneficiaries of a trust may or may not be revoked as a result of the divorce.

Powers of Attorney

If there are any outstanding powers of attorney with third parties, it is important for you to inform them of your divorce and provide them with a revocation so they are on notice that your former spouse is no longer authorized to act on your behalf. It is also critically important to review and update any medical power of attorneys to make sure that your preferred agents have the proper authority.

Life Insurance

Because a life insurance policy is a contract with a third party, a divorce can sometimes complicate things. If you named your former spouse as a beneficiary of the policy prior to your divorce, state law varies as to whether that designation is automatically revoked. Even if the designation is revoked under state law, it is important to change the beneficiary designation so the company is on notice of your wishes. In some cases, although the former spouse is no longer entitled to the life insurance proceeds, if they were not informed, the benefit will be paid out to the named beneficiary (former spouse), and it will be the responsibility of the rightful beneficiary to sue and collect the proceeds from the former spouse. This may not be an issue in some instances, but in others, it could create a lot of avoidable drama.

Retirement Accounts

For accounts governed by the Employee Retirement Income Security Act of 1974 (ERISA), the designation is not automatically revoked. In order to ensure that your former spouse does not receive the benefits, you must affirmatively change the designation, provided that your divorce decree does not state otherwise.

You Need an Estate Plan Now More Than Ever

As a newly single person, you are now in full control of your money and property. Without an estate plan in place, the state laws will determine what happens to your hard-earned money and property. If you already have estate planning documents in place, you need to review them when circumstances change, such as in the event of divorce. Even if gifts to your former spouse are revoked under state law, you need to make sure that the alternate plan built into your documents is still what you want. Give us a call today so we can schedule an appointment to protect your new future and those you love, and don’t forget to bring the divorce decree.