When you’re going through a divorce, the last thing you may think about is your estate plan. You have many more urgent and life-changing decisions to make than thinking about what would happen if you suddenly became incapacitated or died prematurely.
But, as soon as your divorce is final, you have got to review your estate plan and have an attorney update everything for you. If you don’t do this and something happens to you, your loved ones may be surprised that your ex-spouse is the one that has legal rights to make decisions about your health and your finances. Bottom line, the choices you made together most likely are not the choices you’ll make once you are divorced.
For example, you probably made decisions about your children’s guardianship should anything happen to you both before they come of age. After a divorce, should something happen to you, your ex would raise your children by default. But, if your ex is not able or willing to raise them, you would want to leave your guardian wishes in writing. If you don’t, the court will decide who will raise your kids.
You may have also put your spouse as a beneficiary to your life insurance policies. If you don’t change these, your ex will receive the funds despite your divorce. Not your children or other loved ones.
As far as who inherits your assets, if you don’t update your will, the court would most likely distribute your estate according to the law of intestacy, treating your ex as if they had predeceased you. So, they wouldn’t inherit under your will, but you also would lose total control of who inherits your assets because a court would follow the law.
Now, if you are in the middle of a divorce, the situation is a bit more complicated. Under California law, you can only give your half of community or marital property to someone other than your spouse. They own the other half, and you can't give away what's theirs—for example, assets acquired before or your marriage, or by gift or inheritance. California allows you to amend your will before your divorce is final. If you don't do so and you die before the court enters your final decree, your spouse will receive everything you left to him or her, even if it includes your separate property.
In addition to amending your will, you can prepare or change your health care directives and power of attorney while the divorce is pending. This way, should you become incapacitated before the divorce is final, your spouse cannot mismanage your financial affairs for their benefit or make medical decisions on your behalf.
TIP: Since an agent under a power of attorney will be making financial decisions on your behalf, it is a good idea to choose someone you trust and who has some experience handling financial matters. This person can be a trustworthy adult child, sibling, parent, or financial advisor.
Until your divorce is final, some estate planning actions must not be taken without your spouse or the court’s consent. Generally, any action that attempts to shift money or property away from a spouse ahead of a final divorce judgment is prohibited. When child support or spousal support is at issue, you cannot cash-out or borrow against insurance policies (life, health, disability, automobile) or cancel those policies.
At Meza Talbott Law, we can offer you the unique advantage of understanding the legal complexities of divorce as well as estate planning. If you are going through a divorce and want a head start updating your estate planning, we’d love to help you. If you are divorced and haven’t updated your estate planning or don’t have any estate planning at all, please let us help you protect yourself, your loved ones, and your legacy. Contact us at 909-377-8141 or book a call online.
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