What should I do before I file for divorce? What estate planning changes should I make? Can I revoke our family trust? Do I need permission from my wife to change beneficiaries? Can I make a new will without my husband?

 

These are questions I hear from clients referred to me by family law attorneys. There are things that you can do before you file for divorce, and there are (fewer) things you can do during the divorce.

Filing for dissolution in California places on you automatic temporary restraining orders (ATROs). These restrict changes you can make to your estate plan during the divorce proceedings – they are designed to maintain the status quo. However, the status quo can be devastating to you and your loved ones. While death or incapacity during divorce are not common, the consequences are so severe that you can’t overlook the simple estate planning acts you can take to safeguard your family.

Before filing for divorce (or before receiving papers, if you feel your spouse is about to file), consider one or more of the following actions:

• Creating, modifying, or revoking a will;
• Revoking an existing revocable trust;
• Creating and funding a new revocable trust;
• Severing joint tenancies;
• Changing beneficiary designations; and
• Revoking existing powers of attorney and executing new powers of attorney.

All of these actions should be considered before the petition is filed, because at that point in time they may be done without giving notice to the other spouse or RDP or to the court and do not require the consent of the other spouse or RDP or the court.

You should consult with a trusted estate planning advisor so that you can make sure your acts are effective. Consider an advisor other than the one who drafted your original documents.