Estate Planning and Divorce


By Heidi Bitterman, Esq.

When filing a petition for separation or dissolution of marriage, the concept of estate planning is usually the farthest thing from one's mind.  While the likelihood of death of either spouse during the dissolution process may be remote, the consequences of failing to plan for this event are significant to both parties. What most people do not realize is that, until the entry of judgment of dissolution occurs, the parties retain the status of spouses and are accorded all the rights and privileges of that status as provided by law. 

So, for example, if you had engaged in estate planning with your spouse during marriage, the estate plan remains valid during the dissolution process.  Most, if not all, married couples leave their respective community and separate property interests to the other spouse.  If you were to die before your divorce is final, your assets would still be distributed in accordance with your estate planning documents.

Those who have not engaged in estate planning prior to dissolution are by no means better off for not having planned.  For those who die without a Will or Trust, your estate proceeds by a process called intestacy, which is a set of rules in the Probate Code that dictates to whom your estate will be distributed.  If you die before your divorce is final, the California Probate Code states that all of your community property shall be distributed to your surviving spouse.  As for your separate property, the law provides that your surviving spouse can inherit at least a portion of that too, up to 100% if you have no surviving children, parents or siblings.

The rights of spouses also extend to making decisions for the other spouse during periods of incapacity, specifically in the areas of medical and financial decision making.  Unless designations on the Advance Health Care Directive and Power of Attorney are revoked, or documents are drafted naming someone other than the spouse as the primary agent, your spouse retains the ability to make medical and financial decisions for you should you become incapacitated during the dissolution process.  

Divorce is an emotional and often frustrating process.   Estate planning may be the last thing you want to do during this time.   However, carefully consider the consequences of failing to plan and its effect in light of your changed circumstances.  Creating or updating your estate plan will bring you peace of mind and the satisfaction of knowing that your new wishes will be honored.