If you and your spouse recently divorced, you probably understand the need to update your estate planning documents. However, if you are divorced but haven’t had a chance to update your Will, power of attorney, or health care directive yet, under California law you have some protections when your divorce is final. Generally speaking, after a divorce a Will or other estate planning documents naming your former spouse is invalid as to that designation.
If you and your spouse are separated (but not divorced) and one of you dies, it will likely be a different story. The recent deaths of Anthony Bourdain and Kate Spade are good examples of this potential issue. While Kate Spade’s separation details are not yet public, we do know that Bourdain was separated from his wife, but not officially divorced. He reportedly had not updated his estate documents, so his wife – as his next of kin – had the legal authority to make his final arrangements. In Bourdain’s case, it’s possible this was intentional and not an oversight, but that’s not the case for many separated couples.
If you and your spouse are separated and you do not want him or her to be your health care agent or financial power of attorney, you need to create and sign new estate planning documents naming a trusted family member or friend. In that case, your new documents should revoke any previous documents naming your spouse in those roles.
While emotions can run high in a separation and your advance directives may not be at the forefront of your mind, we never know when our loved ones will need to rely on them. After the separation don’t put off making changes to your estate documents until some future date when you think life will have calmed down. There is no limit to the number of times you can update your estate planning documents and the most important thing is that they reflect your current wishes.
The Estate Planning & Legacy Law Center, PLC is dedicated to providing the best options for your estate planning needs and helping people make the right decisions while estate planning. Our comprehensive services will ensure financial security for your family for years to come. Our services include drafting advance health care directives, HIPAA Authorizations, durable powers of attorney, pour-over wills, guardianship nominations, community and separate property agreements, revocable living trusts, complex trust instruments, and guidance to properly title assets in trust title. Contact us today to get started!