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Can I Change My Estate Plan Prior To A Divorce Or During Separation?


There are some things you may want to do prior to filing for divorce, such as place restrictions on transfers of assets, complete pre-divorce planning, change your will, remove joint tenancy on properties, or change beneficiary designations so that your assets will be distributed the way you want them to be distributed. As long as the changes that you make prior to filing for divorce affect just your half of the community property assets, they will not be considered wrongful or fraudulent and won’t cause you trouble once the divorce is filed.

To What Degree Can Someone Modify Their Existing Estate Plan Prior To A Divorce?

You can make changes with regard to any property that you had prior to entering the marriage, any assets you received as gifts or as inheritances during the marriage, and any other items deemed to be separate property under a post-nuptial or prenuptial agreement between you and your spouse.

Is The Spouse Automatically The Beneficiary Of Separate Property Upon The Death Of The Other Spouse?

If there is no estate plan in place, your spouse will be deemed the beneficiary of your estate to some extent. If you have children, then your spouse and your children will divide your estate upon your death. Community property assets are presumed to always go to the surviving spouse at the death of one spouse. However, if you have created an estate plan of your own that controls your separate property or your share of the community property, then the presumption that everything goes to the surviving spouse will be superseded by your estate plan. This is why we always advise people to make an estate plan rather than rely on the presumption that they would want their assets to go to their spouse.

Can I Disinherit My Spouse?

You can choose to disinherit your spouse from the assets that belong to you or from your share of the community property.

Can I Disinherit My Stepchildren?

You can choose to disinherit your stepchildren.

Can I Change The Guardianship For My Children Without My Ex-Spouse’s Consent After A Divorce?

You might be able to change the guardianship for your children without your ex-spouse’s consent, but your surviving spouse will have a very strong presumption of being the guardian or having all of the parenting or custody rights for the children once you pass. This is true even if you had sole custody of your children during your lifetime. In order for that not to be the case, the court would have to find your spouse unfit to parent, which is a very high burden to prove. This is why I advise everyone to name the individuals whom they would want to be guardians of their children.

Can Either Spouse Set Up A Separate Estate Plan With Guardianship Provisions?

Either spouse can set up a separate estate plan with guardianship provisions. Even married couples do separate wills, so regardless of whether you are married, divorced, or widowed, you should always have a will that nominates guardians in the event of your death.

Could My Ex-Spouse Challenge My Nomination For Guardian In My Estate Plan?

Your ex-spouse could absolutely challenge your nomination for guardian. If that ex-spouse is the parent of your children, then they will almost certainly be named as the custodial parent of those children.

For more information on Estate Planning In A Divorce Scenario, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (626) 385-6303 today.

Newell & Havens Attorney At Law

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(626) 385-6303.

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