The Effect of a Divorce On a Living Will

Under California law, there are four recognized methods of revoking a will. The first two are set forth in Probate Code § 6120, which provides for revocation: (1) by subsequent writing (Prob. Code § 6120(a); and (2) by destruction (Prob. Code §6120(b).). The third method is by dissolution or annulment of marriage, as provided in Prob. Code § 6122. The fourth method is by termination of a domestic partnership, as provided in Prob. Code § 6122.1. In today’s blog post, I discuss the third option, revocation by dissolution or annulment of marriage.

In California, unless the will expressly provides otherwise, dissolution or annulment of the testator’s marriage revokes any disposition to the former spouse, any power of appointment granted to the former spouse, and any nomination of the former spouse as a fiduciary. (Prob. Code § 6122.) This revocation rule also does not apply if the spouses remarry each other. (Prob. Code § 6122 (a),(b).) This revocation rule further does not apply to any case where the final judgment of dissolution or annulment of marriage occurred before January 1, 1985; that case is governed by the law in effect prior to January 1, 1985.

 A decree of legal separation, however, does not revoke a will. (See Prob. Code § 6122(d).) This is because, for the purposes of Prob. Code § 6122, “dissolution or annulment means any dissolution or annulment which would exclude the spouse as a surviving spouse” pursuant to Prob. Code § 78. This definition does not include a “decree of legal separation which does not terminate the status of husband and wife.” (Prob. Code § 6122(d).

As a result of the revocation rule, property prevented from passing to a surviving spouse because of the revocation passes as if the surviving former spouse died first. (Prob. Code § 6122(c).) This rule also applies to certain non-probate transfers.  In other words, a nonprobate transfer to the transferor’s former spouse, in an instrument executed by the transferor before or during the marriage, fails, if at the time of the transferor’s death, the former spouse is not the transferor’s surviving spouse as a result of the dissolution or annulment of marriage. (Prob. Code § 5600(d).) Nonprobate transfers include, among other things, trusts, deposit agreements, compensation plans, pension plans, individual retirement plans, employee benefit plans, conveyances, and provisions in instruments that operate on death, other than a will, conferring a power of appointment or name a trustee. (Id.) This can obviously lead to complications in determining how to properly distribute an estate.

Schorr Law has can help with estate distribution issues involving revoked gifts. To inquire about a free consultation please call (310) 954-1877 or email us at info@schorr-law.com. You can also send us a message through our Contact Form.

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