Updating Your Estate Plan After Separation or Divorce

Quick Overview

If Summerall Law did your shared plan, in order for you to have your update call with Summerall Law, you have two choices:

(1) You can work together with us to update and both attend the call, or

(2) We send your former partner a notice email and give them one week to object before the call happens.

If there is no objection after one week, we may work with either of you individually going forward.

Important clarification:
The notice process is not asking your former partner for permission to update your estate plan. It simply gives them an opportunity to object to our firm representing either of you individually because we previously represented you together.

Any attorney can update your estate plan. If you want to update your estate plan on your own and not tell your ex, the best thing to do is get your own new attorney.

What Happens If You Do Nothing

If you are separated but not divorced and you do not update your estate plan, your spouse will generally still inherit under your existing documents and still generally have authority to make decisions for you if you are incapacitated.

Because of this, many clients choose to update their estate plan soon after separating so their documents reflect their current wishes. Usually updating means you create your own individual plan so you can make your own decisions about who inherits your share of the assets and who speaks for you if you are unable to do so, you typically cannot change the joint trust on your own.

For clients with shared young children:
Be prepared during the call to answer questions about whether you want to continue child support after your passing.

How to Request an Update if Only One Spouse Is Coming to the Call

Email clienthelper@summeralllaw.com

Please include:

a note that you are separating or divorcing
your former partner’s email address (or copy them)

If only one person plans to attend, we will send a short notice email to the other partner and give them one week to object before the meeting. The text of that email is at the end of this article.

If you would like to schedule a meeting, please schedule it at least 10 days in the future so the notice period can run if needed.

Why Do You Have to Notify My Former Partner?

When we created your estate plan, we represented both of you together as a couple.

That meant:

we were working for both partners
we were not keeping secrets between you

If we begin representing only one of you, that relationship changes. Going forward, anything you share with us would be confidential from your former partner.

Before making that change, we notify the other partner so everyone understands that the prior joint representation has ended and that we may work with either of you individually going forward.

Are There Limits on What I Can Change?

Yes. While you can always create a new estate plan to reflect your new wishes, whether you can change your actual financial assets (change your trust funding) often depends on whether a divorce has already been filed.

With the consent of your partner, or if the divorce is completely final, you can make any change to the assets. In all circumstances, you may only give away your share of the community property and any separate property.

If a Divorce Has Been Filed

Once a divorce is filed in California, automatic temporary restraining orders (ATROs) go into effect. These orders limit certain financial changes during the divorce process.

Among other things, they generally restrict:

changing beneficiary designations
transferring assets
removing assets from joint arrangements

The purpose of these rules is to prevent either spouse from making unilateral changes while the court is dividing property.

Changes to financial assets may still be possible, but they usually require:

the consent of your spouse, or
approval from the court.

So, while you can’t change how financial assets are owned during the divorce proceeding without consent, you can still create your own estate plan to change who inherits your share of assets and who makes decisions for you.

If You Have Not Filed for Divorce Yet

If you are separated but have not yet filed for divorce, you typically have more flexibility to update your estate plan, financial assets, and beneficiary designations.

However, it is still wise to coordinate any changes with your family law attorney, especially if a divorce may be filed soon.

Retirement Accounts and Beneficiary Designations

Many assets do not pass under your trust or will. Instead, they pass based on beneficiary designations.

Common examples include:

retirement accounts (401(k), IRA, 403(b))
life insurance policies
payable-on-death bank accounts
transfer-on-death brokerage accounts

If your spouse is currently listed as the beneficiary on these accounts, they may still inherit those assets even if your updated estate plan leaves assets to someone else.

However, if a divorce has already been filed, ATROs may restrict changes to beneficiary designations without your spouse’s consent or court approval.

During the update process, we will typically review:

whether beneficiary designations should change
whether changes are permitted during the divorce process
whether temporary planning is needed until the divorce is finalized

Updating Trustees, Agents, and Decision Makers

Many clients who are separated want to update who is in charge of their affairs if they pass away.

Your current estate plan may still name your spouse to serve as:

trustee of your trust
health care agent
financial power of attorney
guardian for minor children

Unless your spouse has had their parental rights terminated, if your former partner is the parent, you cannot change that they will be the guardian of the children if you pass away. However, you may change who you want to serve after that person.

For the other key decision-making roles, your documents can usually be updated to name someone else.

During the update process, we will discuss:

who should manage your trust
who should make medical decisions if you are incapacitated
who should handle financial matters if needed

If you have shared children, ideally you coordinate with your spouse regarding finances and the care of the children if one or both of you pass away.

Planning for Child Support and Spousal Support

Another issue that sometimes comes up in estate planning after separation or divorce is support obligations if a parent dies.

In California:

most child support obligations end when a parent dies.

Because of that, some parents choose to include specific provisions in their estate plan to ensure that children are financially supported if they pass away.

During the planning process, we will typically ask whether you want to include provisions to address this possibility. This can sometimes involve:

life insurance planning
trust provisions for children for child support if you have a child under the age of 18
coordination with existing support arrangements

Spousal support is usually addressed in the divorce settlement or marital settlement agreement (MSA). Because of that, estate planning provisions for spousal support are typically determined as part of that agreement.

Additional Changes Are Often Possible With Mutual Consent

Even after a divorce has been filed, many changes can still be made if both spouses agree.

For example, spouses sometimes agree to:

update joint estate plans
adjust beneficiary designations
restructure how joint assets will pass at death

These agreements are often made to simplify things for children or avoid future complications.

Email We Send to the Other Partner

Before we begin working with one partner individually, we send the following notice.

Subject: Update Regarding Your Estate Plan

Hello __________--

Your ex-partner reached out to us to let us know the two of you separated/divorced or are in the process of getting divorced. We are sorry to hear that.

Separation/divorce tends to change how people feel about their estate plan. Because we previously represented you as a couple, when we learn from one person about a separation/divorce, it is our policy to reach out to the other party we represented.

We are reaching out to you for three reasons: (1) To warn you that your current estate plan may no longer represent your wishes, (2) To make sure you do not object to how our representation will now be different, and (3) To provide you fair notice about how your ex may be updating their estate planning documents.

(1) Here is your standard warning:

Your current estate plan may no longer reflect your wishes, we recommend you review it to determine if you would like changes.
Specifically, living separately or filing for a dissolution, does not have any legal effect on your estate plan--all the distribution provisions, including those where you give everything to your partner, are still enforceable. For many clients, this is not what they want and we recommend that they update their estate plan.

(

2) Here is how your divorce changes our attorney-client relationship, let us know if you object:

Unless you send us an email in the next week objecting to us working with your ex in the future, we will now be free to work with either of you without talking to either of you about what the other person is doing.
That means each ex-partner's information will be confidential and not shared with the ex-partner.
If you prefer we not work with your ex, just tell us by responding to this email in the next week and then you will both need to find a new attorney to represent you.

(3) Here is your notice that your ex may be updating their estate plan (this does not technically change any joint trust—you would both have to sign a document to do that—but it may impact how the joint trust works and it may remove assets from the joint trust or impact how they are inherited if one person passes away)

This email serves as notice that your ex-partner has the intent to revoke that person’s gift of any assets to your joint trust (this does not mean they are changing ownership of any assets, this is the technical legal language that says they may be updating their wishes for who inherits their assets if they pass away). Your ex-partner has agreed that you do not need to give them notice if you choose to do so as well.

If you are interested in updating your estate plan with us please let us know.

Thank you.

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