Impact of Marriage and Divorce on existing Wills and Trusts In California

Impact of Marriage and Divorce on existing Wills and Trusts In California

 Effect of Marriage on estate plans: 

Under California law, a marriage automatically invalidates any pre-existing will or trust as to the new spouse's inheritance rights, unless the documents provide for a new spouse, or clearly indicate a new spouse will receive nothing.

Thus, if the will or trust do not provide for a new spouse, the new spouse will receive the equivalent of what's called an intestate share of the decedent's estate, regardless of the terms of the existing will or trust.

The intestate share is the share provided by statute where someone dies without a will or trust. By statute, the new spouse could receive all of the decedent's property, or one half or one third of the decedent's property, depending upon whether the decedent is survived by children or other relatives.

The surviving spouse would be entitled to the entire estate if the decedent died without children, siblings or parents, or other relatives. If the decedent had only one child, the surviving spouse would be entitled to one half of the estate. If the decedent had two or more children [or siblings or a parent or nephews and nieces], the surviving spouse would be entitled to one third of the decedent's estate.

And if the spouses had community property, the surviving spouse would be entitled to all of the community property.

Effect of Divorce on estate plans:

Divorce judgments or judgments of nullity or legal separation usually negate existing wills and trusts as to a former spouse.

A divorce or judgment of nullity or legal separation will totally negate any dispositions or gifts in a will or trust to the former spouse, unless there is clear and convincing evidence that the decedent intended to maintain the gift or disposition to the former spouse after the divorce judgment. On the other hand, it does not apply to a judgment of legal separation that does not divide the marital property.

A divorce will also negate the former's spouse's designation as the beneficiary under pay-on-death financial accounts; however, a divorce will not negate the former’s spouse’s designation as the beneficiary under a life insurance policy.

If  you have further questions regarding divorce and marriage and estate planning, please contact Martin "Jamie" Elmer, family law attorney in Berkeley, California, at (510) 644-2411 or by email, for a free initial consultation.