Modifying Your Will in the Event of a Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce attorney; The Maggio Law FirmIn the event of a divorce or legal separation, your main residential property, assets as well as family circumstances will likely undergo a huge change. Any provisions made in the existing will might no longer seem in line with your changed situation.

While a divorce scenario can understandably be quite upsetting, it is critical to secure your future by analyzing your will and making necessary alternations to it.

Effect of Divorce on Will

The receipt of the final papers of a divorce case (decree absolute) indicates the settlement of all financial matters between the spouses. Matters related to your estate could still remain unsorted and demand careful consideration. The validity of a will that is made before a divorce remains intact, and could lead to a number of complications.

Several married couples decide to appoint their spouse as the executor and beneficiary of the will, either independently or with their children. In the event of a divorce, the former spouse is completely removed from the will but the other executors as well as beneficiaries to the will remain valid. If you wish that your former partner remain a beneficiary following the divorce, then it might be necessary to draft a fresh will or codicil to the existing will. A codicil is basically a formal extension to your will.

If your former spouse was granted a larger portion of the property/estate or all of the property/estate without any substitute provisions in the will with regards to their absence, then there would be nobody to inherit the property after the divorce. In such a scenario, the intestacy regulation will be applicable to the remaining assets.

Divorcee with Children

If you’re separating from your spouse and have children with him/her, then the property would be inherited by the children. But if the divorced spouse and children end up dying together (for e.g. in a vehicle accident), the divorcee’s parents would inherit the property. In case the divorced spouse does not have parents, siblings, nephews or nieces surviving after him/her, then the grandparents or uncles and aunts would be entitled to the property. This might not be something that you desire; hence it is vital to make changes and update your will to provide for such a scenario.

Remember, in the absence of a will, the property could be inherited by your spouse as per the intestacy rules.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

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