Estate Planning, Marriage, Divorce, & Subsequent Marriages
Marriage is a wonderful thing (at least that’s my experience). Married couples can compile their wealth, raise children, and estate planning is a great first step to plan for the future, whether it’s a responsible young couple with new children, an elderly couple facing the uncertain future, or anything in between. When you get married, please protect your spouse and your loved ones with a properly drafted estate plan. It’s the responsible thing to do.
It’s true, and unfortunate, that many marriages end in divorce these days. In fact, though very rare, it has happened where couples have gotten divorced in the midst of the estate planning process. Naturally, a subsequent marriage will come about. Many people are left wondering, what happens to my estate plan when I get divorced or remarried?
What happens to my estate when I get married?
If you had an existing estate plan, then got married, CA law will provide for your spouse, even if you do not amend you will or trust. It may be costly for your “forgotten” spouse and your estate to accomplish this, so the best thing to do is to update your plan to name your spouse, at a minimum, so that the documents indicate that you have acknowledged your marriage – even if no other changes are made.
What happens to my estate plan when I get divorced?
Stay calm! Your ex-spouse is not going to get everything. When you divorce, California applies a default-rule to your will, trust, advance health care directive, and durable power of attorney that negates nominations of and gifts to your ex-spouse. CAUTION: This does not apply to beneficiaries named on transfer-on-death accounts, life insurance policies, annuities, retirement accounts, retirement packages, and the like. Thus, when you are recently divorced, or as soon as you know you are going to divorce, update your beneficiaries. For practical purposes, it also helps to update your other estate planning documents as well so as to avoid creating confusion for anyone that does not know the applicability of CA law.
What happens to my estate plan when I get remarried?
It works just like when you first get married (see above). Your new spouse will automatically get a portion of your estate if you pass away, even if you do not make a change to your estate plan. This could be a costly procedure, however, if 1) your spouse has to go to court to effectuate the transfer, and/or 2) you did not want to give your new spouse anything at your passing. It sounds crass to say that a new spouse should not get something, however, many subsequent marriages usually involve spouses that already have children, existing estates, and substantial independent wealth. Under these situations, many estate plans for these individuals disinherit a current spouse, and provide for children directly. It’s one way spouses handle inheritance in a blended family. CAUTION: Just because your last will and testament from before the marriage says that your spouse is to be disinherited does NOT mean that when you remarry your new spouse is to be construed as also being disinherited. Major life events can change the way a court interprets your testamentary documents (wills, trusts, etc.). Just as a divorce will change the way a court interprets your will, a subsequent marriage will change the way the court reads your will as well.
When should I update my estate plan after divorce or remarriage?
You should have your will, trust, advance health care directives, durable power of attorneys, etc., reviewed and updated after any marriage, separation, divorce, and remarriage. It’s about being proactive. A recent article on CNBC by Deborah Nason correctly points out that it is important to be “thinking ahead and considering questions such as what your goals are, how your existing family and new spouse will relate to one another once you’ve passed away, and who will be in charge of the money.” Read more here: http://www.cnbc.com/2016/07/28/getting-remarried-protect-your-assets-and-your-interests.html
Contact us today to set up a free initial consultation. We can serve clients with CA estate plans worldwide.
Merrill A. Hanson
Law Office of Merrill A. Hanson
180 N. Glendora Ave., Ste. 201
Glendora, CA 91741
Originally Published July 28, 2016
This page is not intended to convey legal advice. You should contact an attorney for your specific situation.