Posted in Divorce
When facing the emotional and financial weight of divorce, estate planning is rarely top of mind. But failing to update your estate plan during a separation can have serious, and sometimes irreversible, consequences. In California, automatic temporary restraining orders (ATROs) prevent some changes once divorce begins, but not all. That’s why taking strategic action early is critical as our Manhattan Beach, CA divorce lawyer who received a 10.0 rating from Avvo would encourage.
At Skarin Law Group, we help clients thoughtfully navigate issues to protect what matters most, and want to ensure you do not make common mistakes in your case. Here’s how divorce intersects with wills, trusts, powers of attorney, and beneficiary designations — and what you can do right now to safeguard your wishes.
1. California’s Community Property Framework And Why It Matters
Before you can revise your estate plan, you need to understand what’s yours to give away. California is a community property state, meaning:
- Assets acquired during marriage (with limited exceptions) are jointly owned.
- Separate property — including gifts, inheritances, and assets acquired before marriage — belongs to each spouse individually.
- Upon divorce, community property is generally divided equally.
This has direct implications for estate planning. You cannot unilaterally bequeath community property during marriage or while the divorce is pending without consent or court approval. However, separate property can generally be included in revised estate documents—if done correctly.
2. What You Can And Cannot Change During Divorce
2.1 Automatic Temporary Restraining Orders (Atros)
Filed with the petition for dissolution in California, ATROs restrict either spouse from:
- Transferring, concealing, or disposing of property.
- Modifying or cancelling certain nonprobate transfers (e.g., retirement accounts, life insurance).
- Changing beneficiaries on some instruments.
But you can do the following without court approval:
- Revoke a will.
- Revoke a trust (if revocable and you have the legal right).
- Change your power of attorney or health care directive.
- Create a new will for your separate property.
- Update your estate plan to reflect post-divorce intentions (with legal advice).
3. Powers Of Attorney And Health Care Directives
3.1 Why You Should Act Immediately
Most married couples name each other as their agent for financial and medical decisions. If you’re separated or in conflict, leaving those documents unchanged could give your soon-to-be-ex authority over:
- Your bank accounts
- Your business decisions
- Your end-of-life care
- Life-sustaining treatment decisions
These documents should be updated as soon as separation begins. This is not prohibited by ATROs and is one of the first steps we recommend in early divorce planning.
4. Wills And Trusts: A Strategic Rewrite
4.1 Revoking Or Amending Your Will
In California, you can revoke or create a new Last Will and Testament during divorce, but it won’t affect community property and must respect any ATROs. If you die before your divorce is finalized:
- Your existing will remains in force.
- Your spouse could still inherit under your old plan unless changes were made in time.
4.2 What Happens To Joint Trusts?
Many couples have revocable living trusts, especially in California where probate avoidance is a key goal. If you and your spouse created a joint trust, you likely:
- Designated each other as co-trustees and beneficiaries.
- Transferred most of your assets (including your home) into the trust.
During divorce, you may be able to revoke your interest in the trust or create a separate trust for your own assets. However, joint trusts can be legally complex, and unilateral changes may not always be permitted. Strategic review by a lawyer with the right knowledge and experience is essential.
5. Beneficiary Designations: The Silent Saboteur
Beneficiary designations on life insurance, retirement accounts (401(k)s, IRAs), annuities, and bank accounts are non-probate assets — they pass directly to the named beneficiary, regardless of your will or trust.
5.1 What’s The Risk?
Even if your divorce is underway, if your spouse is still listed as beneficiary, they may still receive the asset if you die before the divorce is final. In fact, this has happened in numerous California cases.
5.2 What’s Allowed?
ATROs generally prohibit changing these designations during divorce — but you can:
- Change beneficiary designations after the final judgment.
- Ask the court for permission to update earlier if appropriate.
- Reconfirm or revise immediately if the asset is separate property or ATROs do not apply (consult your attorney).
Post-divorce, you must review all designations or risk unintentionally leaving significant assets to an ex-spouse.
6. Guardianship Provisions: Protecting Minor Children
If you have minor children, your estate plan should include guardian nominations in the event both parents pass away. While California courts give preference to surviving parents, there are situations (e.g., if one parent is unfit or absent) where your nomination could matter.
Even if your soon-to-be-ex is likely to remain in the child’s life, you can:
- Nominate alternate guardians for situations where the other parent is unavailable.
- Include detailed guidance about values, education, and lifestyle preferences.
This is especially important if you have sole custody or anticipate future custody challenges.
7. Life Insurance And Support Obligations
7.1 Insurance To Secure Support
It’s common in California to require a spouse paying child support or spousal support to maintain a life insurance policy naming the other party (or a trust) as beneficiary to secure those payments.
Your divorce judgment may include:
- Required life insurance coverage for a fixed period.
- A trust or custodial account to hold insurance proceeds.
- Instructions for replacing the beneficiary if you remarry or the obligation ends.
7.2 Post-Divorce Beneficiary Reviews
Once these support-secured policies are no longer required, you should:
- Remove your former spouse as beneficiary.
- Consider naming your children, a new spouse, or a trust.
- Re-evaluate your coverage levels based on new financial needs.
8. After The Judgment: Estate Planning Isn’t Over
Divorce doesn’t automatically update or revoke estate planning documents. Once the judgment is final, it’s time for a comprehensive estate plan overhaul, including:
- A new revocable living trust (especially to avoid probate).
- A new will reflecting changed priorities.
- Updated powers of attorney and health care directives.
- Review of trustees, executors, and guardians.
- Final cleanup of all beneficiary designations.
For blended families, second marriages, or those with complex assets (like business interests or real estate), a custom plan is essential.
If you’re going through a divorce in California, estate planning isn’t a luxury — it’s a necessity. Even seemingly minor details can have major consequences for your children, your assets, and your legacy.
We understand the intersection of family law and estate law, and we build forward-looking strategies to help you protect what matters — during divorce and beyond.
Ready For A Strategic Planning Review?
If you’re separated, in the middle of a divorce, or recently divorced, don’t wait to address your estate plan. Contact Skarin Law Group for a personalized consultation with our attorney, the only one in all of California who is both a CPA and Certified Family Law Specialist. We will provide you with the necessary advice to ensure your estate documents guide your family through tough times, reflect your wishes, and California law — today, and into the future.
