Yes. Very likely, the old version of your Last Will and Testament (“Will”) contained provisions that gave certain assets to your ex-spouse. Typically, the provisions in your old Will are phrased in terms of your ex-spouse and will identify that spouse by name. A typical example might read something like this: “I give to my spouse, [NAME OF SPOUSE], all of my assets, personal property, and things of value in our marital home …”
This verbiage in your old Will creates legal problems if you die without revoking the Will and executing a new Will. The problem results from giving to “your spouse,” who is then listed by name. After the divorce, you no longer have a spouse — so no assets should go to that person — but a person IS listed by name. This creates an ambiguity that must be resolved by the California Probate Court. Typically, the Court will resolve the matter as one would expect. The couple has divorced, and thus, the spouse will receive nothing. Presumably, you do not want your ex-spouse to receive anything under your Will. So, hoping the California Probate Court judge rules correctly is NOT a risk that should be taken. Revoke the old Will and execute a new Will to remove the possibility that your spouse will receive something in the event of your death.
Even if you remain friends with your ex-spouse after the divorce and you actually want your ex-spouse to receive something under your Will, you STILL need to revise your Will. As discussed above, if your Will references “your spouse,” an ambiguity is created in your Will as a result of the divorce. If you want your ex-spouse to receive something, you need to create and execute a new Will so that your pre-death intentions are made clear to the Probate Court.
A note of caution is in order in the event that the California Divorce Court issues a ruling that affects inheritance rights. Sometimes inheritance issues are raised in divorce proceedings and are reflected in the divorce court’s final decree. What is stated in the final divorce decree will “control” in the event that a new Will has contrary provisions.
While considering and executing your new updated Will, other California Estate Planning instruments must also be amended after a California divorce. These include:
- Amending any trust documents that reference “your spouse”
- Changing named beneficiaries on accounts like retirement and 401(k) plans, death benefit and life insurance policies, etc. — these types of accounts are commonly subject to final divorce decrees; again, the final divorce decrees will take precedence
- Revoking and amending all powers of attorney for property
- Amending health care powers of attorney — although, often ex-spouses are left on such documents as emergency contact persons
Contact Our Experienced Irvine, CA Estate Planning Attorneys
For more information, contact the Irvine, California, Estate Planning attorneys at Guardian Litigation Group. Our Mission is to provide unparalleled Estate Planning legal services for our clients. We can be reached via our contact page or by phone at (949) 444-5474. We are located in Irvine, California.
