When and Why Should I Change My Will During a Divorce? / by Cassandra Hearn

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After making the momentous decision to end a marriage, there is a great deal of planning and action that takes place right away.  You will need to choose a lawyer, gather documents, formulate a strategy, and sometimes move and get a parenting plan in place.  Most of these actions are focused on the immediate or near future and how lives need to be rearranged and shuffled right now.  It is easy to lose sight of the long-term issues, such as changing a will.   

It should be noted that although the temporary restraining order contained in the divorce summons pursuant to family code section 2040 prevents divorce litigants from making many changes to a marital estate such as borrowing money or dissipating assets, there is a specific exception for making, changing, or revoking a will.  Therefore, even though you may not make many other important changes, your will should be something you change during your divorce.  You should not wait to change your will.  When you are served or have filed your divorce paperwork, you should make an appointment to change your will and your estate plan as soon as possible.

For the vast majority of couples, your will names your spouse as your executor and often the sole heir of all of your assets.  If you are getting a divorce, you clearly do not want your soon-to-be-former spouse in charge of how your assets are distributed in the event of your death.  You would also not want your soon-to-be-former spouse to inherit all of your property.  Accordingly, you should modify your will to name a new executor and create a new distribution of property. 

Child custody is often the central issue in divorce, and some people want to know how to make sure they can name a particular guardian for children.  However, children cannot be “willed” like a piece of property.  It is possible for you to make your wishes known in your will, but a court is not obligated or bound by those preferences.  Moreover, the other parent will have the first right to have custody of those children, barring unusual circumstances such as unfitness. 

If you have questions about your divorce and planning for your future, contact us today at 619-800-0384.  We can talk with you about a strategy and what you need to do to make sure you are planning for all contingencies.