How Divorce Affects Your Estate Plan
Divorce is more than just a personal and financial shift—it has significant legal implications for your estate plan. If you’ve gone through a divorce or are currently navigating one, it’s crucial to update your estate planning documents to reflect your new reality.
Without making these updates, your ex-spouse may still be entitled to your assets, retain control over your healthcare or finances, or even be named as the guardian of your minor children in ways you no longer intend.
In California, state laws automatically revoke certain provisions for an ex-spouse, but this does not apply to everything. Failing to properly update your estate plan could lead to unintended consequences.
Let’s break down what you need to know and what steps to take to ensure your estate plan is properly aligned post-divorce.
What Happens to Your Will After Divorce?
In California, Probate Code Section 6122 states that any provisions in your will that name your ex-spouse as a beneficiary or executor are automatically revoked once the divorce is finalized.
However, this automatic revocation only applies to wills—not other estate planning documents.
What to Do:
✅ Review and update your will to remove outdated provisions and name new beneficiaries.
✅ Appoint a new executor who aligns with your wishes.
✅ If you have minor children, ensure your will reflects the guardianship preferences you want in place.
Trusts & Divorce: What Changes?
If you created a revocable living trust with your ex-spouse, divorce does not automatically revoke their role as a trustee or beneficiary.
If your trust was joint (created during the marriage), it may need to be dissolved or amended.
If you have a separate trust (independent from your spouse), you still need to update trustees and beneficiaries.
Key Considerations for California Trusts:
✅ Revocable Living Trusts – You can amend or revoke them after a divorce to reflect your new wishes.
✅ Irrevocable Trusts – Typically, these cannot be changed after creation, so consult an estate planning attorney to explore your options.
✅ Trusts for Minor Children – If you leave assets to children, consider appointing a trusted third party as trustee, rather than your ex-spouse.
Updating Beneficiary Designations: A Commonly Overlooked Step
One of the most critical post-divorce estate planning updates is ensuring that your beneficiary designations reflect your new status.
California law does NOT automatically remove an ex-spouse from:
✔ Life insurance policies
✔ Retirement accounts (401(k), IRA, CalPERS, etc.)
✔ Payable-on-death (POD) or transfer-on-death (TOD) bank accounts
If you fail to update these documents, your ex-spouse could still inherit these assets—even after divorce.
Action Steps:
✅ Contact your insurance company, financial institution, and employer to update your beneficiaries.
✅ Consider setting up a trust for minor children so their inheritance is managed responsibly.
✅ If you’ve remarried, ensure your new spouse is properly listed on key financial accounts
Power of Attorney & Healthcare Directives: Do You Want Your Ex Making Decisions for You?
Many married couples name their spouse as:
Financial Power of Attorney (POA) – Allows them to manage your finances if you become incapacitated.
Advance Healthcare Directive – Grants them authority over your medical decisions.
In California, divorce automatically revokes these designations—but it’s still best to update them manually to avoid any confusion or legal challenges.
What to Do:
✅ Revoke your old POA and appoint a new agent for financial matters. ✅ Update your Advance Healthcare Directive to ensure your new healthcare proxy reflects your wishes.
Guardianship for Minor Children & Divorce
If you and your ex-spouse share minor children, your estate plan should address who will care for them if something happens to you.
In California, unless there are extreme circumstances (e.g., your ex is deemed unfit), your ex-spouse will have full custody if you pass away.
However, you can still:
✅ Name a backup guardian in case your ex is unwilling or unable to care for your children.
✅ Set up a trust to manage financial assets for your children—ensuring funds are used appropriately.
California Community Property Laws & Estate Planning
California is a community property state, meaning that all assets acquired during the marriage are considered joint property unless otherwise stated in a prenuptial or postnuptial agreement.
How This Affects Your Estate Plan:
✔ During a divorce, assets are divided based on community property laws.
✔ Any joint property agreements in estate documents should be reviewed and updated.
✔ If you remarry, a new estate plan should account for separate and community property rights.
Final Steps: Secure Your Estate Plan After Divorce
🔹 Don’t assume your estate plan updates itself—California law only covers some automatic revocations, and many assets still need manual updates.
🔹 If you don’t update beneficiary designations, your ex-spouse could still inherit assets.
🔹 Set up a trust for minor children to control who manages their inheritance.
🔹 Work with an estate planning attorney to make sure your documents reflect your current wishes.
Let’s Make Sure Your Estate Plan is Divorce-Proof
Divorce is a significant life event, and ensuring that your estate plan is up to date is essential to protecting yourself, your children, and your assets.
If you haven’t reviewed your estate plan since your divorce, now is the time to act.
Contact me today at 📞 805-201-2552 to discuss your divorce and review your estate plan.
Your future is too important to leave to chance—let’s get your estate plan in order today!
DISCLAIMER: The content contained herein is for general informational purposes only. These materials do not constitute legal or other professional advice. We do not accept any responsibility for any loss that may arise from reliance on this information. No reader should act or refrain from acting based on information contained in this article without seeking advice of counsel.