Each state across the country has its own set of probate laws. With that said, there exists a considerable degree of similarity between the probate laws from one state to another. Indeed, a significant number of states in the U.S.A. follow what is known as the Uniform Probate Code, sometimes with some modifications. Noting this similarity of probate laws from one jurisdiction to the next, all states treat what happens to a last will and testament if you divorce in substantially the same way. California is a prime example of what happens to your will if you get divorced. When a divorce decree is entered terminating your marriage, a previously existing last will and testament is no longer in effect. It is no longer a valid will.
Even though a will ceases to be valid upon the issuance of a divorce decree, there are some important associated issues. A prime one involves the state of a will while divorce proceedings are ongoing or what happens to a will if you obtain a legal separation and not a divorce.
State of a Will During Divorce
Technically speaking, the act of a court terminating a marriage is the legal trigger that ends the validity or effectiveness of an existing will. Thus, from a legal standpoint, unless the writer of a will takes action to revoke it during divorce proceedings, the instrument remains in legal effect until the marriage itself is formally terminated at the conclusion of divorce proceedings.
The stark reality is that if you were to die whilst in the midst of a divorce and had taken no affirmative action in regard to an existing will, that will can be filed with the probate court and your property distributed in the manner set forth in that instrument. Odds are that your spouse very well may be a primary beneficiary of that will.
If in the final analysis, an existing will limited what your spouse is to receive upon your death to his or her community property share of assets accumulated while you were married, that generally is the minimum of what your spouse would receive in a California divorce case. Nonetheless, in advance of formally undertaking divorce proceedings, or directly after you’ve learned a case has been started against you, addressing an existing will likely is highly advisable.
An initial inclination might be to revoke an existing will altogether. If you do this and die during divorce proceedings, your assets will pass in the manner set forth by California law. This distribution of assets may not be in concert with your true wishes.
Another option is to create a codicil or amendment to your will. You can set forth in the codicil that your spouse is limited at the time of your death to those assets he or she would be entitled to pursuant to the community property laws of the state of California. This is the minimum of what your spouse lawfully is entitled following your death, which is 50 percent of community assets. It is also the same amount your spouse would be entitled in a California divorce case.
State of a Will During a Legal Separation
Another scenario is a situation in which rather than a divorce, a couple elects to obtain a legal separation. There can be a number of reasons why people elect to obtain a legal separation as opposed to a divorce. These include religious issues and the need to maintain health insurance that one spouse carries but will not cover the other spouse if a divorce occurs.
A legal separation with the benefit of a court order does not terminate a marriage by definition. Thus, no court order triggers the termination of an existing will, as is the case when a divorce decree is entered by a court.
You are left with three options:
- Leaving your existing will in place as is
- Revoking your existing will
- Amending your will through a codicil to limit what your spouse receives according to California community property law
Community Property Laws, Divorce, and Your Will
Community property laws come into play when it comes to both the divorce and probate processes. In California, a person has the legal right to give away any non-community property via a last will and testament to a person who is not his or her spouse. Non-community property is assets that a person obtained before a marriage. Community property is pretty much everything else in the way of property that a couple amasses following a marriage. When it comes to writing a will and community property, a married person technically is legally able to give away 50% of community assets to a party that is not his or her spouse in a will.
In a California divorce case, the division of property oftentimes is one of the most contentious aspects of the proceedings. In theory, California community property laws require that the division of property be as close to a 50/50 split between the spouses as is possible.
Because of the complexities associated with navigating both divorce and probate law, you are encouraged to seek appropriate legal counsel to address the issues you may face. Divorce and probate attorneys in California typically will schedule an initial consultation to discuss your situation at no cost to you.