Divorce revokes transfers to a spouse in a will or trust

It is a good idea to review personal legal documents included in an individual's estate every few years. Families go through changes including death, divorce and remarriage. Sometimes laws change, and a provision in an old will or trust may have consequences that were not intended at the time the document was prepared.

Under California law, some provisions in an estate plan are changed automatically upon the divorce of the person creating the plan. California's Probate Code provides that when an individual gets divorced, any provision in their will leaving property to their former spouse is automatically revoked, unless the will provides otherwise. The will or trust is treated as if the former spouse had not survived the testator, allowing the property goes to the person or persons next in line in the will.

There is a similar provision for nonprobate transfers, including transfers made in trusts. If the trust includes any provision transferring property to a spouse, and the person named is no longer the spouse, the transfer fails just as if the former spouse had predeceased the trust creator. This will not be the case, however, if there is evidence the creator intended the transfer to be effective even after divorce, or if there is a court order requiring the transfer to remain effective.

Notwithstanding these automatic changes that take place upon the dissolution of a marriage, it is still a good idea to review one's estate plan after divorce to make sure it is still consistent with one's priorities and wishes. An experienced California estate planning lawyer can help a divorced spouse through this process.

Source: Leginfo.ca.gov, "Probate Code Section 5600," accessed Sept. 20, 2015

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