Posted by Jeremy Swanson
On August 25, 2015

Estate Planning And Divorce

Estate Plans and Divorce

Did you know that filing a divorce does not automatically sever or change your estate plans? A final judgment does, but not the filing of the dissolution proceeding. During the time while your divorce is pending, if you die, your property will pass either according to your will or trust (which is almost always giving your half of the community property to your soon-to-be ex-spouse) or by intestacy if you have no estate plan (also to your ex-spouse).

At the same time, there are limits on what you can do to change your property disposition during the divorce because of the automatic temporary restraining orders (often referred to as ATRO’s) that prevent you from changing or selling assets during the divorce process without a court order. So what can be done?

First, if you have an estate plan (a Will or Revocable Trust) you need to speak with BOTH your estate planning attorney and your family law attorney to make sure any specific action is not violating the ATRO’s. Consequences for doing so can be significant. You need legal advice to be sure.

Second, if you don’t have a will, you need one. Don’t wait until the divorce is over. During the divorce is when you need the protection of a will. If you have a current will naming your ex-spouse as beneficiary, you can revoke it and make a new will.

Third, in some cases, you need to sever a joint tenancy of real property. Most property, such as houses, owned by a married couple are held in joint tenancy with rights of survivorship, which means that the surviving spouse gets the entire house if the other spouse dies. This can be severed (where advisable) by filing a notice of termination of joint tenancy.

Fourth, if you already have a trust, you need to determine if you have the power to revoke it. Some trusts require BOTH spouses to revoke a trust, and some only require one. You cannot transfer property in a trust without the court’s permission, and you absolutely must check to see if you have the power to revoke the trust or transfers to the trust. Although you can create a new trust immediately, you cannot “fund” or place property in the new trust until the divorce is over. In cases where you already have a trust, the provisions of the trust are very important and control what you can and cannot do. You may also be able to agree to change the trust with your ex-spouse, as it is highly likely that they may share your concern and wish to have the trust revoked. Neither party usually wants the other spouse to receive all the property if they die during the divorce process.

Always keep in mind that the divorce process can take some time; anything can happen in the meantime, and the process can take much longer than you anticipate. Taking reasonable and prudent steps during the process is always advisable.


ALSO SEE Automatic Restraining Orders In Divorce:

DISCLAIMER: All legal principles quoted are valid as of the date of writing in the State of California. However, you should NEVER base your actions on a legal article, blog, or internet story, as facts in real life are complicated. You should have your case evaluated by an attorney experienced in the area of law needed for your case. In addition, there are often exceptions and potential changes to results that occur due to facts that you may think are trivial or unimportant. This article should not be taken in any way as legal advice on your specific legal matter.