Will Divorced Spouses Still Receive Assets in a Will?

The end of marriage signals a major shift in your financial future, especially regarding how your assets will be distributed through wills within your estate plan. It’s common practice to designate your spouse as the recipient of all or a significant portion of assets through a will, but how does a divorce impact those designations?

Thankfully, the law provides a safety net to safeguard your assets and your legacy from ending up in the hands of an ex-spouse, but it doesn’t completely absolve you of a responsibility to update these designations.

Understanding Probate Code 5040

Under Probate Code 5040, if you pass away after a divorce, the law typically views your ex-spouse as having predeceased you. This is extremely important regarding how your assets get distributed according to your estate plan—which was likely made (or modified) when you married. Any benefits your ex-spouse would have received are automatically voided, ensuring the assets are distributed according to other instructions in the document or, if no instructions are provided, according to state intestacy laws.

This automatic adjustment is based on the presumption that you wouldn’t want your ex-spouse to inherit your assets post-divorce. This process underscores the importance of having a clear and updated estate plan that reflects your current wishes and circumstances. However, you are welcome to include your ex-spouse in future distribution designations if desired in cases where you maintain an amicable relationship.

This rule kicks in only once the divorce is officially finalized. If you are legally separated but remain married, your spouse could still inherit as if you were married, underscoring the legal importance between separation and divorce.

Designations Outside of Your Estate Plan

Divorce in California alters the distribution of assets outlined within your estate plan, but you must take specific actions to update other financial instruments. For instance, beneficiary designations on life insurance policies and retirement accounts remain unaffected by divorce unless manually changed (but can be voided in some limited cases). This distinction is vital for ensuring your estate plan aligns with your intentions after your marriage ends as these designations supersede your estate.

The Importance of Updating Your Estate Plan

Since divorce nullifies provisions for an ex-spouse in any will and trust you have created, reviewing and possibly revising your estate planning documents after a divorce is imperative. This ensures your assets are distributed according to your current wishes, not based on outdated intentions. This proactive approach can significantly mitigate future legal challenges or misunderstandings among surviving family members.

Additionally, updating your estate plan is not just about removing your ex-spouse as a beneficiary. It’s also an opportune moment to reassess your entire estate planning strategy. This includes considering the need for new fiduciaries, such as executors or trustees, who align with your current situation.

Additionally, for those with minor children, divorce necessitates a careful review of guardianship and distribution arrangements for those children. For example, if your divorce was contentious, you might not want your ex-spouse to be the trustee in charge of your money for your children! Ensuring your children are protected and provided for, regardless of your marital status, is paramount. This review should include financial provisions and guardians’ appointments in the unfortunate event of your incapacity or death. This is an opportunity to update other critical elements of your estate plan, such as your Power of Attorney and Health Care Directives. 

Reviewing and updating your estate plan post-divorce can help avoid family disputes and ensure a smooth transition of your assets. Engaging with a legal professional with experience in estate planning can provide much-needed guidance and direction during this process.

Dahl Law Group Is Here to Help

If you need to adjust your estate plan post-divorce, the team at Dahl Law Group will assist you. We invite you to schedule a consultation where we can evaluate your estate planning needs and make necessary updates to ensure your assets are distributed according to your wishes. Our team is dedicated to guiding you through this process, safeguarding the legacy you wish to leave behind.

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Dahl Law Group

At Dahl Law Group, we’re not just a law firm. We’re your trusted advisor for your business and family from beginning to end. As your family and business grow, we will be there by your side. Our passion is providing you with peace of mind and protection through personalized estate and business planning.

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