Divorce and remarriage are a normal part of our culture today. Although the divorce rate has gone down, today, about 40% of US marriages end in divorce. Many divorced people remarry and start building a new life.
However, unless you plan carefully, divorce and remarriage can wreak havoc on your current estate planning, especially in California.
You and your divorcing spouse likely signed several estate planning documents together, or for the benefit of each other and your family. How do you untangle these? How do you move forward with a well-thought-out estate plan in place?
Every state has different marriage, divorce, and estate planning laws. California has specific laws that will impact your estate when you divorce and remarry. As a California resident, these laws will directly affect your current and future estate planning.
The worst thing you can do is to do nothing.
The best thing you can do is speak with a qualified California estate planning attorney as early as possible.
But, the first thing you should do is understand the basics of how divorce and remarriage will affect your California estate planning, as outlined below.
Review Your Current California Estate Plan
Whether you are in the process of getting divorced or are divorced and getting remarried, the sooner you review your estate plan - the more options you will have.
What You Have Now
In reviewing your current estate plan, you should gather and go over your current documents with a qualified California estate and trust attorney. You might have executed them years ago, or possibly just recently. Kids grow up. Financial situations change. You might have joint accounts, or be trustees of each other’s trusts. All these things matter.
In any case, there are several essential items to review. Below are just a few:
- What estate documents have you executed?
- Whose signature is on the documents
- Who is the beneficiary of your will, and what does it say?
- Have you established any trusts?
- Are the trusts revocable or irrevocable?
- Whose signatures are on the trust?
- Who is the trustee, and who are the beneficiaries?
What You Want To Happen
Before drafting documents and changing accounts, you should put some serious thought into what you would like to accomplish.
- If you are already divorced, what did the divorce decree say?
- Do you have children or other family members you want to have as beneficiaries of your new will or trust?
- Does your new spouse have children, and how will you treat them in your estate planning?
- Might you and your new spouse have children together?
- What do you want to happen to the marital estate that you receive from your past marriage?
- What about your business and real estate assets?
- Are any of your children married, and how are they or their spouse in handling finances?
- Do you want to leave control of your assets to your new spouse?
- Or, do you want to leave assets in a trust for family members with instructions given to a trustee?
How You Get There
This is an area where you should consider help from a qualified California estate and trust attorney. You can go online and get all sorts of forms and advice - but California divorce laws and estate planning laws are complex.
Add to that how divorce and remarriage affect your rights under these laws. You will quickly discover doing this yourself can be extremely difficult. And unfortunately, mistakes made here may be costly for you and your family.
Let us help you with a free consultation. San Diego Legacy Law offers customized planning services to help you protect your assets and plan for your future. We listen to your concerns and explain critical concepts in jargon-free terms. We help you consider all of the variables that can potentially affect your estate plan.
California Divorce Laws that Affect Your Estate Planning
Your estate planning will be reasonably straightforward if you are already divorced with a settled California divorce decree. Still complex- but direct.
However, if you are still in the divorce process, now is the time to review and make legally allowable changes to your estate planning.
In California, Family Code Section 2040, Standard (Automatic) Temporary Restraining Orders ("ATROs") are placed into effect upon the filing of a dissolution marriage.
ATROs are basically financial restraining orders to prevent a spouse from transferring, encumbering, hypothecating, concealing, or disposing of any real or personal property without the written consent of the other spouse or court order.
There are specific actions you can and cannot take. Some actions require notifying your spouse, some need their approval, and some require the court's approval.
Actions You Cannot Do
During the divorce process, in California, you are prohibited from
cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their child or children for whom support may be ordered.
Only with Spousal Consent or Court Order
Some actions are prohibited unless the spouse consents or the court approves.
These include transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate (for example, the making of a gift by one spouse),
except in the usual course of business or for the necessities of life, and creating a non-probate transfer or modifying a non-probate transfer in a manner that affects the disposition of property subject to the transfer (for example, changing beneficiary designations).
Allowed with Just Notice to Court and Spouse
Some other actions are allowed if the notice of the change is filed with the court and the spouse is provided with notice of the change.
These include the revocation of a non-probate transfer, including a revocable trust, pursuant to the instrument and the elimination of a right of survivorship to property.
Allowed Without Notice to Court or Your Spouse
A spouse may take the following actions without providing notice to the spouse or the court:
(a) create, modify, or revoke a Will,
(b) create an unfunded revocable or irrevocable trust, or
(c) modify a non-probate transfer in a way that does not affect the disposition of the property (an example would be, modifying the successor Trustee provisions).
When Beneficiaries and Fiduciaries Remarry
Remarriage can disrupt your estate planning even when you are not the one who remarries.
Sometimes, a beneficiary remarries after you have named them in your legal documents. If the new marriage is rocky because the new spouse is financially unstable or at risk for lawsuits, it may be time to review your estate planning.
In that case, you may want to specify that any inheritance that passes to your beneficiary alone must be held in an ongoing asset protection trust for their benefit. Such language can prevent the inheritance you leave the beneficiary from being attached by their spouse's creditors or even from being divided as marital property in the event of a divorce.
What if Your Children's Guardians Remarry?
Suppose you named a married couple as your children's guardians should you and your spouse pass away. But they are now divorced and remarried. What should you do now? If you do not update your estate plan, the court may have difficulty determining who should be your children's guardian.
What to Do Now
Remarriages can affect your California estate plans.
When marrying for the second time in California, you will want to protect your children and new spouse should you become incapacitated or pass away.
A well-thought-out estate plan can do just that, and the sooner you begin the process the more choices you will have.
San Diego Legacy Law is a qualified California law firm specializing in estate and trusts.
Our attorneys are familiar with all California divorce laws and how they affect estate planning for second marriages.
Call today for a free consultation and learn your next best steps.