California Estate Planning Blog by Kevin Staker

January 16, 2018

Divorce and Estate Planning by Kevin Staker

Filed under: Uncategorized — Kevin Staker @ 1:17 pm

If you or spouse file for divorce, your assets will still likely go to your estranged spouse.  You likely would not want this.  The follow are the alternatives.

Do Nothing

Your estranged spouse likely get all .  The spouse likely gets all under joint tenancy, beneficiary designatons or your living trust.

Few divorcing individuals would want such a result in their case. What to do?

What Should You Do Instead?

First – Write a new Will and revoke any living trust.

Write a new Will.  Cut out the spouse by name.

If you have a living trust, revoke it. In California you must file notice with the court and then deliver it to your spouse.  Then you can sign a revocation and deliver that to your spouse.  Your Will will then control to whom you share of trust will go.

Second – Sign a new living trust

You can and should sign a new revocable living trust. Make sure you say nothing goes to your estranged spouse.

The problem is you cannot fund the trust until the divorce is final. California law provides for an automatic temporary restraining order (“ATRO”) on both parties. Neither party can transfer any asset. However, your pour over Will will then get your trust share to the new trust.

Third – Sign new durable powers of attorney

Immediately sign new powers of attorney for finance and health care. Of course, name someone other than the spouse. The ATRO does not prevent signing new durable powers.

Fourth: Sever joint tenancies

Next, sever any joint tenancies with the spouse, especially real property. Use the same type of procedure as revoking the living trust. Your Will will then control where your interest will go.

Fifth: Revoke IRA and other beneficiary designations

Use the same notice procedure to revoke all beneficiary designations.  Your Will will then likely control where the account or plan will go (except for the community property interest of your spouse).


In summary, a divorce is usually very emotionally troubling. In the midst of the maelstrom do not forget to do what you can to make sure your assets do not go to your estranged spouse and will go to whom you really want them to go. Take action now.

For more details on the above go to the Linkedin article by Kevin Staker found at

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