I am often asked about restraining orders that become effective when a divorce action is filed in California and how those orders impact estate planning by my clients who live in Los Angeles County, Santa Barbara County, Ventura County or Orange County. I am also asked about the ability of my clients to do estate planning when they terminate their marital status before the final disposition of property.
When a dissolution action is filed, pursuant to California Family Code section 2040(4)(b), parties are prevented from creating a nonprobate transfer or modifying a nonprobate transfer that could affect the disposition of the property being transferred without having first obtained the written consent of the other party or a court order. Nonprobate transfers include revocable trusts, joint tenancies and beneficiary designations such as payable on death accounts, IRAs, profit sharing pension plans and life insurance.
As a result, a trust can be created but cannot be funded. While this will allow my client to immediately fund the trust at the conclusion of the dissolution action, this does not solve the problem of dieing during the dissolution action without an estate plan in place.
Therefore, if my client has the luxury of time, creating or modifying a revocable trust should be done before a dissolution action is pending. If this is not possible, then revoking any and all family trusts should be considered and an interim Will should be created. This will insure a disposition of my client’s separate property and one-half of the community property to persons whom my client would want to receive the property should their death occur during the pending dissolution action.
Because people often choose to terminate their marriage before the final disposition of property, what about estate planning of such property once the parties divorced? The issue was that while restraining orders became effective upon the filing of the dissolution action, Probate Code section 5600 provides that spousal beneficiary designations are automatically revoked at the termination of marital status if an asset is a “non probate transfer asset,” as defined in Probate Code section 5000 unless there is either (1) clear and convincing evidence that the transferor intended to preserve the nonprobate transfer in favor of his or her former spouse, or (2) an order from the Court. Effective January 1, 2008, the California legislature resolved this question in California Family Code section 2337(c)(7A).
California Family Code section 2337 addresses the situation where a party seeks to terminate their marital status before the disposition of property and protections that may be put in place to protect the spouse that did not seek the early termination of their marital status. Section (c)(7A) now provides that the Court may specifically order a party, as a condition of their seeking to be divorced, to maintain the other party as a beneficiary of a nonprobate transfer of one-half, or upon good cause, all of a nonprobate transfer asset until a judgment is entered with regards to the property and the property is in fact distributed.
As a result of this new development, it is important that when my clients tell me they are divorced, I must inquire further. I need to know if they were divorced after January 1, 2008; and if so, if they have a final judgment on their property issues. If not, I need to see their Status Only Judgment of Dissolution to know if the Court imposed a California Family Code section 2337(c)(7A) condition on the termination of their marital status so I know how to proceed with their estate planning.
If you are contemplating a divorce and you are concerned about your spouse getting your estate upon your death because that is what your Will or living trust provides, then speak with me about resolving this issue. I am an estate planning attorney and can help.