Can I Create or Modify a Will or Trust During a California Divorce?

Divorce is a key turning point in a person’s life in which it is important to think about updating their estate planning. As people go out of your life, new people come into your life, and what property you own may radically shift, it is common sense that you will want to take a look at your will and other estate planning instruments such as trusts to determine what property you have and which beneficiaries you would like to honor both during your life and after.

Because divorce takes a long period of time – a minimum of six months in California from the date of filing, and often much longer – you should not necessarily wait for the divorce to be finalized to begin this process. That said, there are some restrictions on what you can do with your estate planning between the time your divorce is commenced and finalized, but, again, this should not prevent you from taking certain steps such as creating or modifying your will.

What You Cannot Do During the Divorce Process

After you have either filed for divorce or received service of a divorce petition from the other spouse, there are certain automatic restrictions that are placed on you via California Family Code 2040 with respect to your property, whether it was your separate property from before the marriage (or received via gift or inheritance) or community property acquired during the marriage.

Among other things, both parties are restrained from, “transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life…”

In addition, both parties are prohibited from, “creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court.”

In layman’s terms, this law means, among other things, that for the most part you cannot presently transfer any property outside day-to-day and normal transfers without the other spouse’s written consent.  

What Estate Planning Steps You Can Take During a California Divorce

This does not, however, mean that you are unable to take important estate planning steps to protect yourself and your beneficiary, even prior to the divorce being finalized.

California law specifically states that both parties in an ongoing divorce are allowed to:

• Create a new will
• Revoke a prior will
• Update an existing will
• Create a revocable or irrevocable trust (although you may not be able to fund the trust without written consent of the other party or until the divorce is finalized)
• Revoke an existing revocable trust (conditions apply)
• Eliminate a right of survivorship to property (conditions apply)

Speak to an experienced California estate planning professional about what steps you can take to update your estate planning both during and after your California divorce.

Update Your Estate Planning With a Pasadena Estate Planning Attorney

Estate planning and probate attorney Christopher B. Johnson, located in Pasadena, California, has years of experience in all aspects of estate planning, and works with clients from all walks of life to create estate planning tools that reflect their needs and those of their beneficiaries. To request an immediate consultation, contact him today at (877) 755-9178.