There are plenty of legal considerations during a divorce. You need to work through ending your marriage, deciding child custody, and dividing your assets. When you’re so caught up in the day-to-day elements of your split, it’s easy to miss the bigger legal picture. For example, when dealing with paperwork surrounding your marital assets, you may not think about legal documents like your last will and testament.
That’s a mistake. Your will is one of the most important things you’ll ever write, and if you pass during divorce proceedings, your property may. Here’s what you need to know about divorce wills, why you need one, and how to write a will that’s secure during your separation.
What Is a Divorce Will?
A divorce will is a last will and testament that you write when you begin the process of ending your legal marriage. It may or may not be intended as your new, permanent will, but it always provides a stopgap between your pre-divorce wishes and your post-separation state.
This stopgap is essential if you don’t want your former spouse to inherit your assets upon your death. Many people write wills that assign their estate to their spouse if the other person should survive them. You presumably no longer want that to occur, so writing a new will allows you to override the old one.
Why You Should Change Your Will During Your Divorce
But why is a divorce will so important? It’s because accidents happen. California law requires a six-month waiting period between the date a divorce is filed, and the dates courts can make it official. That’s a lot of time. You don’t want a car accident or sudden illness to take you by surprise and lead the courts to award your estate to the spouse you’re trying to leave.
In California, when you’re divorced, any gifts you made to your ex-spouse in your will are automatically revoked. However, you can’t rely on state law to cover you. If you move out of state, your will is no longer subject to California state law, after all. Meanwhile, if your separation isn’t finalized, courts won’t adjust your existing will at all. If you leave things to your spouse in that document, they will receive them regardless of your actual personal relationship.
Changing your will can prevent all of this. California law states that upon the death of a spouse, 50% of the marital assets are considered the surviving partner’s property. The deceased partner’s will determines the ownership of the other half of the assets. Should you unexpectedly pass away before your split is final, you can use your will to ensure that the spouse you were attempting to leave doesn’t walk away with your entire estate.
The Limitations on Altering Wills During Divorce
California law specifically permits you to update your will, create a new will, and revoke an old will during a divorce. Your will is a personal document and does not have any impact on your soon-to-be-ex as long as you’re alive. However, you need to consider the complications of dividing your estate when your assets are in flux.
During your separation, you can’t create new bank accounts, close old accounts, or change the beneficiaries to your insurance policies. Furthermore, California requires both parties to receive 50% of the total marital assets but doesn’t offer guidelines for how they should be divided. So, while you can alter your will in California during a divorce, you’ll need to word it carefully to avoid the risk of bequeathing an asset you don’t actually own.
Structuring a Secure Divorce Will
When you’re ready to write a new will that doesn’t include your ex-spouse, you need to make sure it will stand up in court. You can make sure your will is secure by following these five steps.
1. Revoke your old will.
As soon as you’re prepared to create a new will, you should revoke your old one. Having two wills in existence is never a good idea. The older will can be used by your former spouse to contest the new will. Even if the contest doesn’t succeed, it can still tie up your estate in probate court and remove funds from the amounts you want to leave your beneficiaries. Instead, revoke your will. The simplest solution is to destroy it completely. You can tear it up or burn it, whatever is easier.
2. Choose your words carefully.
When you’re writing your will, the last thing you want to do is to accidentally cause your heirs legal problems. You need to choose your words carefully to avoid headaches. If your legal separation isn’t final, avoid assigning any specific marital property. You may not receive it in the final division of assets, which could lead to complex negotiations in probate court.
3. Divide your property.
Name who you want your property to go to and in what percentages. You can name any parties you like, including children, other relatives, friends, and charities. By leaving out your spouse, they will not receive anything.
Just note that it’s completely unnecessary to leave a dollar to someone in your will as a way to disinherit them. Suppose you’re revising your will before your divorce is finalized. In that case, you can simply name your ex-spouse in the introduction to the will and state that you choose not to leave them anything from your estate. After your split is final, you don’t even need to mention that in any future wills.
Protect Your Estate Even During Divorce
When you’re legally separating from your spouse, you want to make that split permanent. You don’t want to accidentally leave them with your possessions instead of granting them to your heirs just because of a lack of documentation. Writing a new legal will during your divorce is the best way to make sure your wishes are respected should the worst happen.
If you’re considering a divorce will, reach out to a qualified attorney to discuss your case. You can learn about the unique considerations of ending your marriage and ensure that your new will can stand up in court. Get started today by contacting the experienced divorce attorneys at Kaspar & Lugay, LLP, in Marin County, California.
