Divorce is emotionally and financially draining, and by the time it is finalized, most people are ready to put the legal process behind them. But there is one critical area that divorce does not automatically resolve: your estate plan. Many of the documents you created during your marriage still name your ex-spouse in positions of extraordinary power and benefit. Until you actively update these documents, your ex-spouse may remain the person who inherits your assets, makes your medical decisions, and controls your finances if you become incapacitated.
Your Trust
If you and your ex-spouse created a joint revocable trust during your marriage, that trust needs to be either revoked and replaced or substantially amended. A joint trust is designed for a married couple and typically distributes assets to the surviving spouse upon the first death. After divorce, this structure no longer makes sense. You will need a new individual trust that reflects your current wishes, names new successor trustees, and designates new beneficiaries.
Even if you had a separate individual trust, it likely names your ex-spouse as successor trustee, beneficiary, or both. These designations do not automatically change upon divorce. You must actively amend or restate the trust to remove your ex-spouse and name new individuals.
Your Will
California Probate Code Section 6122 provides that a final divorce decree automatically revokes any provision in a will that benefits a former spouse. However, this automatic revocation has important limitations. It does not apply to property passing outside of probate (like retirement accounts), and it does not affect provisions for children. It also does not name a replacement beneficiary, so the revoked provision may cause the asset to pass through intestacy rather than to the person you would choose. Relying on this automatic revocation is risky. A new will that reflects your current wishes is the safer approach.
Beneficiary Designations
This is the area where the most damaging mistakes occur after divorce. Beneficiary designations on retirement accounts governed by federal ERISA law (most employer-sponsored 401(k) and pension plans) are not automatically revoked by divorce under California law. Federal law preempts state law for ERISA plans, which means your ex-spouse remains the beneficiary unless you actively change the designation. We have seen cases where a person remarried, lived with their new spouse for decades, and their ex-spouse still received the entire 401(k) because the beneficiary form was never updated.
Life insurance policies, annuities, and non-ERISA retirement accounts (like individual IRAs) may be subject to California's automatic revocation rule, but the safest approach is to update every beneficiary designation after divorce, regardless of the type of account.
Power of Attorney
Your durable power of attorney likely names your ex-spouse as your agent, giving them authority to manage your finances, access your accounts, and make financial decisions on your behalf. Divorce does not automatically revoke a power of attorney in California. You must create a new power of attorney naming a different agent immediately after your divorce is finalized. Until you do, your ex-spouse technically still has authority under the existing document.
Healthcare Directive
Similarly, your advance healthcare directive probably names your ex-spouse as the person authorized to make medical decisions on your behalf. California law does automatically revoke a healthcare directive designation of a former spouse upon divorce (Health and Safety Code Section 4727), but creating a new directive with your current chosen agent eliminates any ambiguity.
Guardian Nominations
If you have minor children, your will should include guardian nominations. After divorce, you should review these nominations carefully. While the surviving biological parent typically has priority for custody, your will should address what happens if both parents are unable to care for the children. You may want to name different guardians than you would have named during your marriage.
The Post-Divorce Estate Plan Checklist
- Create or amend your revocable living trust to remove your ex-spouse
- Execute a new will with updated beneficiary designations and guardian nominations
- Update beneficiary designations on all retirement accounts, life insurance, and annuities
- Create a new durable power of attorney naming a new agent
- Create a new advance healthcare directive naming a new agent
- Update your HIPAA authorization
- Review and update title on all real property and bank accounts
This article is for informational purposes only and does not constitute legal advice. Every family's circumstances are unique. Contact MVP Law Group for a consultation to discuss your specific situation.