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Estate Planning During Divorce
| Estate Planning Actions | Authority |
|---|---|
| 1.- What Can I Do Unilaterally? | |
| a. Create, modify, or revoke a will. | Fam C §2040(b)(1) |
| b. Create, but not fund, a new single settlor revocable or irrevocable trust. | Fam C §2040(a)(2), (b)(4) |
| c. If in the usual course of business or for the necessities of life, transfer, encumber, hypothecate, conceal, or in any way dispose of any property, real or personal, whether community, quasi-community, or separate. | Fam C §2040(a)(2) |
| d. Execute and file a disclaimer. | Fam C §2040(b)(5) |
| 2.- What Changes Can I Make With Notice To My Spouse Or RDP? | |
| a. Revoke a revocable trust. Notice must be filed and served on the party before the change takes effect. Follow revocation terms of trust exactly. | Fam C §2040(b)(2), (d)(1) |
| b. Revoke a transfer to the beneficiary of a "nonprobate transfer." Notice must be filed and served before the change takes effect. A "nonprobate transfer" includes primarily individual retirement accounts (IRAs) and life insurance. (Note: You can only revoke life insurance if child support or spousal support is not at issue under Fam C §2040(a)(3).) | Fam C §2040(b)(2), (d)(1) |
| c. Eliminate a right of survivorship for property (joint tenancy or community property with right of survivorship). Notice must be filed and served on the other party before the change takes effect. | Fam C §2040(b)(3) |
| 3.- What Changes Can I Make Only With My Spouse or RDP's Consent Or With A Court Order? | |
| a. Transfer, encumber, hypothecate, conceal, or in any way dispose of any property, real or personal, whether community, quasi-community, or separate, except in the usual course of business or for the necessities of life. | Fam C §2040(a)(2) |
| b. Create a "nonprobate transfer" or modify a "nonprobate transfer" in a manner that affects the disposition of property subject to the transfer. A "nonprobate transfer" includes, but is not limited to, revocable trusts, pension plans, employee benefit plans, IRAs, and life insurance. (Note: Pension plan beneficiaries are controlled by the Employee Retirement Income Security Act of 1974 (ERISA) (29 USC §§1001-1461), and the nonparticipant spouse is entitled to be the beneficiary under federal law.) | Fam C §2040(a)(4), (d)(1); Prob C §5000 |
| c. Fund a revocable or irrevocable trust. | Fam C §2040(a)(2), (4); see also Fam C §2040(b)(4) |
| 4.- What Changes Can I Make Only With A Court Order? | |
| Funding, creating, or modifying a nonprobate transfer if the other spouse or RDP does not consent. | Fam C §2040(a)(4), (d)(1) |
| 5.- What Changes Can I Not Make? | |
| Cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries on life, health, automobile, and disability insurance when child or spousal support is at issue. | Fam C §2040(a)(3) |
Please contact Sowards Law Firm to discuss your estate planning wishes during your separation and ongoing divorce. We can also discuss what can be done to further protect your estate after your divorce is final.
