Did you know that, if you die during your divorce, it is likely your spouse will inherit everything? Makes for a good murder mystery, doesn’t it?
When you create your will and/or trust during marriage, you often are only planning for what happens after death. However, many marriages end by divorce or legal separation (rather than death) and it is important to discuss with your attorney what happens to your estate plan when this happens.
Your Estate Plan Before Filing for Divorce
It is highly recommended to make adjustments to your estate plan before filing for divorce or legal separation. Automatic temporary restraining orders (ATROs) are posed on both parties to a dissolution or legal separation proceeding and this affects what changes you can make to your estate plan. (§2040.) Many changes may require notice to your spouse, a court order and some actions are even prohibited, such as changing the beneficiaries on life, health and disability insurance plans. (§2040(a)(3).) Accordingly, a client should be aware that making these changes before filing a petition for divorce would be easier.
What Assets Are in Your Estate Plan?
Although it is quite morbid to think that you may pass away before the marriage is officially dissolved, it is an event that will affect how your assets will be treated. That’s why it is crucial to tell your attorney that a will and/or trust exists so the attorney can best protect your assets during this time. During divorce or legal separation proceedings, you and your spouse remain legally married so if your will leaves your assets to your surviving spouse, in the unfortunate event of your death before the proceedings are final, your assets will still go to your spouse. This may not reflect your wishes.
In the likely case that you don’t adjust your estate plan before filing for divorce, your attorney can help to the extent possible while ATROs are in place. There are no restrictions with revoking, drafting or modifying a will and there are also no restrictions in regards to powers of attorney. (§2040(b)(1).) Revoking a revocable trust and eliminating a joint tenancy in real property require notice to your spouse. (§2040(b)(2)-(3).) Other actions, such as funding a trust or transferring or disposing of any property, require consent from your spouse or a court order.
Going through a divorce or legal separation can be a difficult time with many considerations, like division of property, child support and parental rights, but alerting your attorney of your estate plan will ensure that the distribution of assets upon your death reflect your wishes.