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Does Divorce Invalidate a Will or Trust in California?

Does Divorce Invalidate a Will or Trust In California?

     Estate plans, including wills and trusts, are carefully thought through plans set in place to protect the distribution of one’s assets when one passes. But what happens if a married couple goes through a divorce, after forming their estate plan together? Assuming the divorced couple does not execute new estate planning documents, does a divorce invalidate a will or trust in California involving an ex spouse?

     Probate law takes a common sense approach in these types of situations, assuming one would no longer want their ex spouse to benefit financially or assume powers of appointment.  Pursuant to Probate Code section 6122, unless a will provides otherwisethe dissolution or annulment of a marriage revokes all disposition or appointment of property provided to a former spouse. Further, it revokes any general or special powers of appointment given to the former spouse, as well as any nominations of the former spouse as executor, trustee, conservator, or guardian.

     Probate Code section 5040 mirrors the effect of section 6122, causing non probate transfers to a former spouse, such as those made through a revocable trust, to fail. The Probate Code also contains similar statutes with respect to other common estate planning documents, such as powers of attorney or advanced healthcare directives.  It should be noted that a mere legal separation (which does not terminate the status of spouses) does not cause Probate Code sections 6122 or 5040 to go into effect.

While many may be relieved to hear there are laws in place which prevent former spouses from inheriting property or assuming control of their affairs, this raises further questions. What happens to the property which fails to transfer, or to the powers which were previously conferred to an ex spouse? Under these types of circumstances, the law treats the situation as though the ex spouse failed to survive the testator or grantor.  Depending on language of your estate plan and your individual circumstance, this can implicate California intestacy laws and your estate may now to be exposed to probate. If you would like to discuss a review or amendment of your estate planning documents, we invite you to contact the Law Office of Christine Padilla, a San Diego law office specializing in estate planning and probate. –  Christine Padilla, Attorney & Owner

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