Dissolving one’s marriage creates many complications, including the need to change one’s estate plan to make it current. This should not be neglected because should one die during the divorce proceedings the surviving spouse can still inherit under the deceased spouse’s will, if named as a beneficiary. Likewise, the surviving spouse may still inherit if named as a designated death beneficiary on any pay-on-death policy (e.g., life insurance, retirement plans, etc.) notwithstanding a decree of legal separation; the decree does not terminate the marital status.
Filing the dissolution petition, however, limits each spouse’s ability to change their estate plan. Prior to filing, a married person can unilaterally control the disposition on death of their one-half share of any community property assets and all of their separate property assets. Upon filing the dissolution petition and issuance of a summons, however, the Automatic Temporary Restraining Order (“ATRO”) immediately imposes four (4) different rules. Let us examine these rules.
First, the ATRO absolutely prohibits each spouse from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, auto, or disability, held for the benefit of the spouses and their children for whom support may be ordered. This is to prevent either spouse or their children from being harmed from any detrimental changes to insurance.
Second, the ATRO also restrains each spouse (1) from transferring any property, real or personal (except in the usual course of business or for necessities of life); and (2) from changing the death beneficiaries named on any nonprobate asset (such as retirement plans, annuities and revocable living trusts). Either the prior written consent of the other spouse or a court order is needed to accomplish any changes.
Third, the ATRO, however, still allows each spouse to revoke a revocable living trust, or other nonprobate transfer, and also to sever a joint tenancy, provided that notice of any such change is filed with the court and is served on the other spouse before the change takes effect. Severing the joint tenancy, and thereby creating a co-equal tenancy in common, is important to prevent the other spouse from inheriting the entire joint tenancy estate should one spouse die while the joint tenancy remains in effect.
Fourth, the ATRO also allows each spouse, without notice or permission, to create, modify or revoke a will; create an unfunded revocable or irrevocable trust; and otherwise modify a nonprobate transfer, such as a trust, in a manner that does not affect the disposition of the property, e.g., changing the designated successor trustee of an existing Trust. Thus, either spouse – without the permission of the other spouse or a court order – can create an unfunded living trust that would be funded on death by way of a Pour-over Will in order to effectuate estate planning changes. The drawback is that a probate of the Pour-over will is needed in order to transfer assets into the trust.
In summary, persons getting divorced are well advised to update their estate plan in case they should die prior to the decree of dissolution of marriage, and their existing estate plan in favor of the estranged spouse be given effect.
Editor’s Note: Attorney Dennis A. Fordham is a Board Certified Specialist in Estate Planning, Trust and Probate Law. Dennis concentrates his practice in the areas of estate planning and various aspects of elder law, including Medi-Cal benefits. Mr. Fordham was qualified as a Certified Specialist in 2009 by the State Bar of California Board of Legal Specialization, and is licensed to practice law in California and New York. He earned his BA at Columbia University, his JD at the State University of New York at Buffalo, and his LLM in Taxation at New York University. His office is located on the 2nd Floor at 55 First Street, Lakeport, California and he can be reached by calling 707-263-3235 or e-mail at Dennis@DennisFordhamLaw.com.
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