Divorce is known for being a highly emotional event, even when it’s truly for the best. In many situations, the spouses go through major life changes. One spouse may move out. A stay at home parent or homemaker could go back to work after a long break from the workforce. Children will begin splitting their time with both parents, or an infant or toddler may go from being home to needing full-time childcare, etc.
While a couple is going through so many major changes, there are certain things that may be completely forgotten, such as the need to take a child to a dental cleaning, the need to fill out school forms for a high school athlete, and the need to update the estate planning documents. Since we’re a divorce firm, we’re going to discuss the need to change estate planning documents immediately following a divorce, but we’ll leave the dental appointments and school forms to our readers where applicable.
Begin By Updating Your Will
If you’re like a lot of people, you and your spouse drafted a will in the first few years of marriage. In the will, you probably left all of your assets to each other in case one of you dies. Many states, including California (Cal. Probate Code Sec. 6122), have laws in effect that say a divorce automatically revokes bequests made to a former spouse through a will.
However, we do not recommend relying on state law, especially if your spouse is a named beneficiary on any of your accounts, such as bank accounts, an IRA or 401k, or life insurance because these are not voided by the Probate Code.
Once your divorce is final, you should promptly meet with an estate planning attorney and have him or her draft a new will that reflects your current wishes, and this includes who you’d like to be your beneficiaries now. Though California’s Probate Code offers you certain protections in the event of a divorce, you don’t want to die and then have your will tied up on probate as the courts sort it all out.
Even if your former spouse is prevented from inheriting a portion of your estate, you still want a say in how your assets are distributed. For instance, you may want them to go to your children, specific relatives, to favorite charities, or special friends.
Is Your Spouse the Executor?
A lot of California couples designate their husband or wife as the executor of their estate in case something happens to them. While you may be on friendly terms with your spouse and you may have an unusual relationship where you still trust them completely despite the divorce, the probate court may see it differently. Accustomed to acrimonious divorces, the court may be inclined to disregard your ex as the executor of your estate, especially if you never updated your will after the divorce.
Do you have children under the age of 18? If so, guardianship is an issue that should be addressed in your new estate plan. “But, wouldn’t that person be my ex?” Of course, he or she would be Plan A, but it’s important to address guardianship in case something were to happen to you and your spouse and neither of you were capable or fit to care for them. For example, suppose your spouse got Multiple Sclerosis and could no longer care for your children and you were diagnosed with terminal cancer shortly afterward.
The laws surrounding divorce and estate planning vary from state to state. If you are headed toward divorce and you have significant assets or if a lot of your assets are tied up in beneficiary designations that name your spouse as the beneficiary, you should consult with a local estate planning attorney to plan to make the necessary changes that will ensure your estate plan reflects your current wishes.
Life Insurance Issues
Many California divorces involve life insurance. Meaning, a divorce attorney may include life insurance as a provision in the divorce settlement, which requires both spouses to maintain life insurance in a large enough amount that it covers child support and spousal support obligations in case something were to happen to the supporting spouse. In these cases, the former spouse or the children are the named beneficiary in the policy.
Essentially, if one of the spouses earns a lot less money and he or she relies on child support and/or spousal support to live, the receiving spouse can suffer financially if their ex dies unexpectedly and the payments are permanently interrupted. If you will be paying child and spousal support, it’s a wise move to have sufficient life insurance in place that will handle these obligations if something were to happen to you.
On the other hand, you may not be ordered to pay child support or spousal support, but you’ll still want to remove your former spouse from your life insurance policy as the beneficiary. You may want to name your children or another family member as the beneficiary of your policy instead of your ex.
Regardless of your circumstances, it’s wise to review your life insurance policy to make sure it is current after your divorce and the beneficiaries named in the policy reflect your current obligations and wishes.
Lastly, you’ll need to review your power of attorney documents. If your spouse is currently the person authorized to make medical, end of life, and financial decisions on your behalf if you become incapacitated, you probably want to change those immediately.