Updating Your Estate Plan After Separation or Divorce

Quick Overview

If Summerall Law did your shared plan, in order for you to have your update call with Summerall Law, you have two choices:

You can work together with us to update and both attend the call, or
We send your former partner a notice email and give them one week to object before the call happens.

If there is no objection after one week, we may work with either of you individually going forward.

Important clarification: The notice process is not asking your former partner for permission to update your estate plan. It simply gives them an opportunity to object to our firm representing either of you individually because we previously represented you together.

Any attorney can update your estate plan. If you want to update your estate plan on your own and not tell your ex, the best thing to do is get your own new attorney.

What Happens If You Do Nothing

If you are separated but not divorced and you do not update your estate plan, your spouse will generally still inherit under your existing documents and still generally have authority to make decisions for you if you are incapacitated.

Because of this, many clients choose to update their estate plan soon after separating so their documents reflect their current wishes. Usually updating means you create your own individual plan so you can make your own decisions about who inherits your share of the assets and who speaks for you if you are unable to do so. You typically cannot change the joint trust on your own.

For clients with shared young children: Be prepared during the call to answer questions about whether you want to continue child support after your passing.

How to Request an Update if Only One Spouse Is Coming to the Call

Email clienthelper@summeralllaw.com

Please include:

A note that you are separating or divorcing
Your former partner's email address (or copy them)

If only one person plans to attend, we will send a short notice email to the other partner and give them one week to object before the meeting.

If you would like to schedule a meeting, please schedule it at least 10 days in the future so the notice period can run if needed.

Why Do You Have to Notify My Former Partner?

When we created your estate plan, we represented both of you together as a couple. That meant:

We were working for both partners
We were not keeping secrets between you

If we begin representing only one of you, that relationship changes. Going forward, anything you share with us would be confidential from your former partner. Before making that change, we notify the other partner so everyone understands that the prior joint representation has ended.

Are There Limits on What I Can Change?

Yes. While you can always create a new estate plan to reflect your new wishes, whether you can change your actual financial assets (change your trust funding) often depends on whether a divorce has already been filed.

With the consent of your partner, or if the divorce is completely final, you can make any change to the assets. In all circumstances, you may only give away your share of the community property and any separate property.

If a Divorce Has Been Filed

Once a divorce is filed in California, automatic temporary restraining orders (ATROs) go into effect. These orders limit certain financial changes during the divorce process.

Among other things, they generally restrict:

Changing beneficiary designations
Transferring assets
Removing assets from joint arrangements

Changes to financial assets may still be possible, but they usually require the consent of your spouse or approval from the court.

So, while you can't change how financial assets are owned during the divorce proceeding without consent, you can still create your own estate plan to change who inherits your share of assets and who makes decisions for you.

If You Have Not Filed for Divorce Yet

If you are separated but have not yet filed for divorce, you typically have more flexibility to update your estate plan, financial assets, and beneficiary designations. However, it is still wise to coordinate any changes with your family law attorney, especially if a divorce may be filed soon.

Retirement Accounts and Beneficiary Designations

Many assets do not pass under your trust or will. Instead, they pass based on beneficiary designations.

Common examples include:

Retirement accounts (401(k), IRA, 403(b))
Life insurance policies
Payable-on-death bank accounts
Transfer-on-death brokerage accounts

If your spouse is currently listed as the beneficiary on these accounts, they may still inherit those assets even if your updated estate plan leaves assets to someone else.

However, if a divorce has already been filed, ATROs may restrict changes to beneficiary designations without your spouse's consent or court approval.

Updating Trustees, Agents, and Decision Makers

Many clients who are separated want to update who is in charge of their affairs. Your current estate plan may still name your spouse to serve as:

Trustee of your trust
Health care agent
Financial power of attorney
Guardian for minor children

Unless your spouse has had their parental rights terminated, if your former partner is the parent, you cannot change that they will be the guardian of the children if you pass away. However, you may change who you want to serve after that person.

For the other key decision-making roles, your documents can usually be updated to name someone else.

Planning for Child Support and Spousal Support

In California, most child support obligations end when a parent dies. Because of that, some parents choose to include specific provisions in their estate plan to ensure that children are financially supported if they pass away.

This can sometimes involve:

Life insurance planning
Trust provisions for children for child support if you have a child under the age of 18
Coordination with existing support arrangements

Spousal support is usually addressed in the divorce settlement or marital settlement agreement (MSA). Estate planning provisions for spousal support are typically determined as part of that agreement.

Additional Changes Are Often Possible With Mutual Consent

Even after a divorce has been filed, many changes can still be made if both spouses agree. For example, spouses sometimes agree to:

Update joint estate plans
Adjust beneficiary designations
Restructure how joint assets will pass at death

These agreements are often made to simplify things for children or avoid future complications.