Divorce is both an emotional and a legal process. One goal of the legal part of a divorce is to legally divide the debts and assets of the marriage. One thing that divorcing couples often overlook during the divorce process is how that divorce impacts existing estate plans. When they do think about the ramifications of divorce on estate plans, either during or after a divorce, they start wondering if an ex-wife (or husband) is entitled to an inheritance after the divorce. To help clarify the situation, the Los Angeles estate planning attorneys at Schomer Law Group, APC discuss whether a Will remains valid after a divorce.
What Happens to the Validity of Your Will after Divorce?
Usually, the real issue when discussing the validity of a Will after a divorce is whether a now ex-spouse can still inherit from that Will. When discussing an ex-spouse inheriting it is necessary to break the original question into two separate questions. The first is whether an ex-spouse is legally entitled to inherit from your estate. To answer that, we look to the California intestate succession laws. Those laws determine who your heirs are and which of those heirs inherit from your estate if you die without a Will or trust in place. While legally married, your spouse is a legal heir and is entitled to legally inherit from your estate. Once a divorce is finalized, however, your now ex-spouse is no longer an heir and has no legal right to inherit from your estate.
The second question is more complicated. That question asks whether your ex-spouse may inherit from your estate based on terms within your estate plan. Although your ex-spouse is no longer considered a legal heir to your estate, your ex-spouse was likely a prominent part of your estate plan when you were married. If you fail to review and revise your estate plan, your now ex-spouse may still be entitled to inherit from your estate or even assume important fiduciary roles within your estate plan.
How to Prevent Unintended Consequences after a Divorce
To make sure your ex-spouse (or anyone else) doesn’t unintentionally stand to inherit from your Will after a divorce, the following aspects of your estate plan should be reviewed once a divorce is finalized:
- Basic estate plan provisions and fiduciary designations. Bequests in a Will or provisions in a trust may need to be changed. You may also need to amend your Will to remove your spouse as Executor or amend a trust to appoint a new Trustee. Likewise, if your spouse is your healthcare surrogate or agent under a power of attorney you should review those documents.
- Beneficiary designations. While you were married you probably listed your spouse as the beneficiary of your retirement accounts, life insurance, and financial accounts. These designations may also need to be updated when you decide to divorce. State and/or federal law may prohibit you from changing some of these during the divorce. In addition, the terms of the divorce may further prevent you from changing beneficiaries. Be sure to consult with your divorce and estate planning attorneys before making any changes to beneficiaries.
- Trust agreements. You may have created a revocable living trust as part of your incapacity planning component. If so, your ex-spouse was probably appointed to be your successor Trustee so that he/she could immediately take over control of trust assets should you become incapacitated. Unless you still want your ex-spouse to have this authority, you will need to update that trust agreement or your former spouse could one day have complete control over the trust assets.
Contact Los Angeles Estate Planning Attorneys
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about estate planning, contact the experienced Los Angeles estate planning attorneys at Schomer Law Group APCby calling (310) 337-7696 to schedule an appointment.
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