Divorce and Estate Planning

Divorce and Estate Planning

When a couple is getting divorced, their focus is on the immediate consequences of dissolving their marriage: the distribution of assets, custody arrangements for minor children (if any), and the emotional fallout for all concerned. However, both parties should also be considering the effect of the divorce on their individual estate plans. Provisions made during the early days of a marriage or soon after the birth of a child may no longer make sense in light of the changed relationship, and neglecting to make necessary changes now could lead to awkward or untenable situations in the future. Here are critical estate planning areas those in the middle of a divorce should be considering to avoid costly mistakes:


Most married couples name each other as executors and beneficiaries under their wills, with children (if any) receiving their assets equally should both spouses pass away. Your will should be revised to reflect your new wishes on how your estate should be distributed after your death.


If you had a trust established, this may be the time to either modify it or revoke it. An important area to review is how funds for any minor children would be managed, as you may prefer to have your sibling, parent, or a trusted friend take charge of handling your assets in this regard rather than your former spouse. An attorney specializing in trust and estate law, like the experts at NM Law, can help you review or set up a trust in accordance with your current plans.

Titling of assets 

If a couple owns a house or condo, and that residence goes to one of them in the divorce, it’s essential to ensure the title reflects the change in ownership. In California, most married couples hold their property as joint tenants with rights of survivorship, meaning each of them owns an undivided interest in the property. Should one die, the home passes directly to the other. When a divorce is finalized, that joint tenancy is severed, making the ex-spouses tenants in common, assuming nothing else is done. This means that either party could still sell their individual share of the property. It also means that the party occupying the property would be unable to sell it or pass it down to their heirs with a clear title down the line. 

This consideration doesn’t apply only to real estate. The titling of bank accounts and other assets should be reviewed, as joint titling in these cases also leaves everything to the survivor.

Powers of attorney/health care powers of attorney

It’s common for a spouse to be listed as the agent to handle your financial affairs or to make medical decisions for you should you become incapacitated. These documents should be a top priority for revision in the event of a divorce.

Retirement funds and/or pensions

Do you recall who is named as the beneficiary on your 401(k), IRA, SEP, or structured pension? If a retirement account was established a long time ago, you may not remember, and if it was done during your marriage you probably listed your then-spouse. Review and update any such account.

Life insurance

Existing life insurance policies should be reviewed, like retirement accounts, to examine beneficiaries and make any necessary changes. This may also be a time to consider new insurance as an estate planning tool, especially if you have young children who will need to be provided for. 

Your Estate Planning Resource

Whether a divorce is amicable or contentious, it’s a major change for all involved. A knowledgeable estate law attorney can ensure that your plans to benefit your heirs down the road aren’t derailed by overlooked details now. At NM Law, we will help you go over the elements of your existing estate plan, guide you in determining what additional assets and property need review, and assist in making needed updates. Our expertise in trust and estate law allows us to analyze your individual situation and create the best plan for distributing your estate according to your wishes, no matter how complex the picture. To find out more about our estate law services, contact us here.

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