by Jack Brown, Esq.
A typical estate plan for a married couple includes a Revocable Trust and pour-over Wills, Durable General Powers of Attorney and Advance Health Care Directives.
The purpose of a Revocable Trust is to avoid probate and provide for distribution upon death. It is, essentially, a Will substitute. In order to be effective, property must actually be transferred to the Trust. The purpose of a pour-over Will is to add to the Trust any property that was not properly transferred prior to death.
Family Code §2024 provides that a Petition for Dissolution of Marriage must include a notice that dissolution or annulment of marriage may automatically cancel a spouse’s rights under a will, trust, retirement benefit plan, power of attorney, etc.
Probate Code §4152 provides that dissolution terminates a Power of Attorney.
Legal separation does NOT terminate a Power of Attorney – Probate Code §6122 provides that unless a Will expressly provides otherwise, dissolution revokes any disposition or appointment of property made by Will to a former spouse.
Legal separation does NOT revoke disposition set forth in a will or under the rules of intestate succession –Probate Code §5601 provides that a joint tenancy may be terminated if, at the time of death, the former spouse is not the decedent’s surviving spouse because of dissolution or marriage.
Legal separation does NOT sever the joint tenancy –If a Trust is created by a husband and wife, unless the Trust provides otherwise, either of them may revoke the Trust with respect to the portion that they contributed (Probate Code §15401(b)). However, revocation or amendment is usually not effective until the revocation or amendment has been filed in the dissolution action and served on the other party.
Statute and case authority provides protection once a final Judgment of Dissolution terminating the marriage has been entered. What happens in the meantime? Unfortunately, if a spouse dies while the dissolution action is pending, unless the decedent has executed a new Will or has revoked or amended a Trust, the existing documents will remain in full force and effect. Presumably, the surviving spouse will inherit.
An Interim Estate Plan During Dissolution Proceeding is Essential
- A Restraining Order is usually in effect that precludes transfer of assets. However, title documents should be reviewed to determine exactly how title to real and personal property is held (i.e., joint tenancy, tenants in common, as community property, in trust, etc.)
- Joint tenancies should be severed.
- Existing Wills and Trust Agreements should be reviewed.
- Wills and Trusts should be revoked and/or amended as necessary to meet the short term objectives of the client.
The Law Offices of Jack Brown are located at 41391 Kalmia Street, Suite 210, in Murrieta. www.jackbrown.com (951) 698-0050.