Frisella Law, APC
San Diego Estate Planning and Trust Litigation Attorneys
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Is your estate plan ready for your divorce?

Creating an estate plan not only provides security for your loved ones, but it can give you peace of mind as well, especially if your plan includes elements to protect your wishes while you are still alive. When you made your estate plan, you likely anticipated few major changes in your life. However, life often throws curve balls, and now you are facing a divorce.

Naturally, you have a lot to think about and plan. Preparing for a divorce can be time consuming as you gather and valuate your assets, determine custody of your children and decide who gets the house. One important item on your to-do list you should not postpone is the revision of your estate plan.

Built-in protections

As in many states, California law contains several protections for those who go through a divorce after making an estate plan. For example, if you have included your spouse in your will, the provisions made for your spouse become invalid on the date the judge signs your divorce decree. The same is true for your revocable trust.

The entire document is not null, but the law treats the factors relating to your spouse as if your spouse preceded you in death. Therefore, if you have included your spouse's children or other relatives in your will, these remain. Also, if you have an irrevocable trust of which your spouse is a beneficiary, you cannot change this unless you have such stipulations in the language of the trust or you have a prenuptial agreement.

Serious issues to consider

The real concern is for the period of time between telling your spouse you want a divorce and the signing of the divorce decree. Depending on your situation, this could take months or longer. Anything can happen in that time, and your attorney has probably seen cases where a spouse who had not revised an estate plan fell ill or died before the divorce. You should be aware of these dangers:

  • Your will and revocable trust are in full force until the day your divorce is finalized.
  • The court will honor your will even if you are one day from the signing of your divorce decree.
  • Your spouse's designation on your life insurance and other accounts remains valid if you should die before your divorce.

The law revokes your spouse's designation as a beneficiary of your life insurance and many other policies once you divorce. However, this may not stop him or her from claiming those funds if you should die before your financial institution learns of your divorce.

The bottom line is that a careful review and revision of your estate plan is critical if you are planning to divorce your spouse. The sooner you can accomplish this, the better. In fact, many advisors suggest making relevant changes before you approach your spouse to announce your intention to leave.

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Frisella Law, APC
2139 First Avenue
Suite 200
San Diego, CA 92101

Toll Free: 866-334-2614
Phone: 619-260-3500
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