Estate Planning During Divorce: What You Need to Know
Going through a divorce is one of life’s most stressful events—but in the midst of the legal and emotional complexities, don’t forget to revisit your estate plan.
At Kaminski Law Group, we often work with individuals navigating divorce who aren’t sure what they can or should do with their estate plan while the divorce is pending. The answer? A lot—but with important limitations.
Here’s what you need to know.
Why Estate Planning Matters During Divorce
When a divorce is filed, Automatic Temporary Restraining Orders (ATROs) go into effect. These orders limit what each spouse can do with their assets. While you can’t make sweeping changes without consent or court approval, you can take meaningful steps to protect yourself.
If you don’t, your soon-to-be ex may remain:
- The beneficiary of your life insurance and retirement accounts
- The agent under your health or financial power of attorney
- The person who inherits your share of jointly owned assets
We’re here to help you prevent that from happening.
What You Can Do Right Away
Before or after filing for divorce, you can:
- Revoke your will and create a new one
- Update or revoke your advance health care directive
- Revoke financial powers of attorney
- Create a new trust (but not fund it without notice or consent)
These steps don’t violate ATROs and can offer immediate peace of mind.
What Requires Special Care
Once the divorce petition is filed, some changes require notice to your spouse—and others can’t be done without agreement or court approval.
For example:
- You can revoke a trust, but you must provide notice.
- You can sever joint tenancy, but must follow special procedures (like recording a deed and notifying your spouse).
- You can’t change life insurance or retirement plan beneficiaries unless your spouse consents or the court approves it.
- You can’t transfer property outside of the normal course of business without consent.
The rules are technical, but that’s why we’re here.
Planning with the Future in Mind
Your updated estate plan should also:
- Clearly reference the divorce
- Avoid accidental funding of a trust
- Include backup beneficiaries and agents who aren’t your ex
- Consider what happens if there’s a reconciliation
We also advise clients on planning for incapacity—because if something happens to you while the divorce is pending, your ex may still have control over health and financial decisions unless you’ve updated your documents.
Let’s Talk
If you’re in the middle of a divorce or considering one, let’s have a conversation about how to protect your future and your legacy. Planning early can save you from costly and unintended consequences down the road.
Call us at (916) 540-7618
Email: hello@californiatrusts.law
Website: www.californiatrusts.law
We’re here to help you through every season of life—especially the hard ones.
