What is a Divorce Will and do I need one?

On occasion, a party to a divorce proceeding that is still pending will die by legitimate means.  When this occurs, it can amount to a windfall for the other spouse and it can leave children from previous marriages out in the cold and very disgruntled.  I recommend to people who are divorcing that they speak to an estate planning attorney as soon as possible after the filing of a petition and find out whether they should execute a divorce will so that their loved ones are protected in the event of their untimely death.

Death during divorce is a very complicated, convoluted topic and I cannot possibly address every nuance adequately.  In addition, it is not my intention by this blog to offer or give legal advice to anyone as the giving of proper legal advice would require that I be informed of all pertinent facts pertaining to an individual’s situation before rendering adequate advice.  This is a one sided article whereby I am simply attempting to advise the general public as to what a Divorce Will is and how it can be useful to people who are in a divorce proceeding.  No legal advice is intended by this blog posting.

Generally in California if a party to a divorce proceeding dies before their status (Married to Single) has been resolved then their estate passes as if no petition had been filed.  If that party dies after their marital status is dissolved then non-probate transfers are terminated but not life insurance.

In California, the family law Summons contains automatic restraining orders that go into effect against the filing party once the petition is filed and they go into effect against the responding party once that party is served papers.  These automatic restraining orders prevent either party from taking actions during the divorce proceeding that would alter the designation of beneficiaries and other specified actions.  A Divorce Will will not violate these automatic restraining orders so it is a valid way to ensure that the person you are divorcing (or who is divorcing you) won’t inherit any more from you than is possible should you die during the proceeding.

In a Divorce Will, you can revoke a pour-over will and create a new will.  You can revoke a RLT with notice to the other spouse and you can fund a new RLT with consent of your spouse.  You can sign new health care directives without notice and without consent.  However, you cannot remove your spouse as the beneficiary of life insurance without a court order and if you have listed your spouse as a beneficiary on a 401K then you must obtain informed consent from the spouse.

I urge everyone considering divorce to seek a consultation from an estate planning attorney contemporaneously or even beforehand and have your specific questions answered about whether a Divorce Will would be prudent for your situation and goals.