Why You Need to Write a New Will During Your Divorce

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Why You Need to Write a New Will During Your Divorce

When you file for divorce, you may assume it’s obvious that you no longer want to be legally and financially connected to your spouse. If you did, you wouldn’t be getting divorced.

This fact may be obvious to the average person, but it isn’t in the eyes of the law. Until your divorce is finalized, you are still considered legally married. 

Normally, this may feel like a mere technicality. During the mandatory six-month waiting period California requires, you can still live more or less like you’re single, even though you aren’t. However, as some families unfortunately discover, this technicality makes all the difference if something happens to you before your split is final. 

Your spouse is your legal next of kin, even if you’re in the midst of a divorce. Unless you have a will stating otherwise, they have the right to inherit most or all your property. If you have a will, filing for divorce does not revoke it. That’s why it’s critical to write a new will and estate plan as soon as possible after filing for divorce. 

What Is an Estate Plan?

An estate plan is a collection of documents stating your wishes if you are incapacitated. The most basic plan consists of a will explaining who should receive your assets after you’re gone. More complex plans may include Power of Attorney documents, Advance Medical Directives, and trusts to ensure your wishes are followed. 

These plans are intended to simplify matters for your heirs when you cannot make your own decisions. Critically, if you have a valid will when you pass, you are considered “testate,” and its terms will be followed during probate.

Many married couples develop estate plans together, but not all. If you do not have one in place when you pass, you are considered “intestate,” and your entire estate is handled according to California inheritance laws. 

Why You Need to Update Your Will and Estate Plan

If you have a significant amount of assets and do not currently have a will, writing one as soon as possible once you have filed or received divorce paperwork is critical. Until you do, your legal spouse remains your primary heir under California inheritance law, which means:

  • If you have no living descendants or other relatives, your spouse inherits everything you own.
  • If you have one living child or a surviving parent or sibling, your spouse receives all your community and quasi-community property and half your separate property. The remaining property goes to your child, parent, or sibling in that order. 
  • If you have multiple living descendants, community property and one-third of your separate property goes to your spouse, and the remainder is split evenly between descendants.

If you have a will, filing for divorce does not revoke it. Most married couples name each other as their sole heirs if one person should die first. This protects the surviving spouse from losing important assets because of the other person’s death. However, if you die with this type of will in place while getting a divorce, the probate court will still honor it. Your soon-to-be-ex could inherit everything you own.

Presumably, none of these situations are your preferred outcome. That’s why writing a new will is essential. 

How to Write a New Will and Estate Plan During or Post-Divorce

Writing a will and estate plan takes time, but it is worthwhile to ensure your wishes are recorded. It’s better to be safe than risk your not-quite-ex inheriting everything after an accident. 

The best way to draft a will and estate plan post-divorce is to work with an experienced attorney. Your lawyer will ensure that the documents reflect your preferences in legally appropriate language. They will also help you update all the relevant records, so nothing gets left behind. As they guide you through writing a new estate plan or updating an old one, they’ll instruct you to:

  • Name your chosen heirs. Presumably, your spouse is no longer on this list. You can identify anyone else you like, though, including your children, other family members, friends, and charities.
  • Consider your assets. No matter what, your spouse has a right to half of your community property until the divorce is finalized. However, all of your separate property and your half of the joint assets are yours to do with as you wish. Think about how you want your assets distributed among your heirs. Many high-net-worth individuals write a temporary will as a stopgap until their divorces are final, then revoke it and write a second, permanent will once asset division is complete and they know what property they truly own.
  • Update other documents. If you’ve set up trusts or life insurance policies that benefit your spouse, your attorney can help you change them once your divorce is final. Similarly, if you’ve granted your partner Power of Attorney, you’ll need to revoke that and grant it to someone you trust more.

Consult CC LawGroup for Help With Divorce and Estate Plans

When your marriage ends, it can be difficult to focus on anything else. However, spending a few hours revising your estate plan could save your family years of unnecessary conflict. Writing a new will can help you protect your assets and ensure they go to the people who matter most. That’s where the expert attorneys at CC LawGroup can help you. Our skilled lawyers are dedicated to helping our clients protect their families’ futures. We understand the complications involved in estate planning and divorce, so we are prepared to help you draft a new will reflecting your wishes and circumstances. Learn more about how we can help you by scheduling your consultation today.