If you are in the middle of a divorce and considering changing your will, you are not alone. This is a common question: Can I change my will while going through a divorce? The answer is yes, but with some important caveats:
What You Can Do
You can change your estate plan during the divorce — but you must provide written notice to your spouse (or their lawyer). And in many cases, once you have made those changes, you will also need to provide them with a copy of your new estate plan.
As soon as you file for divorce, a set of rules referred to as the Automatic Temporary Restraining Orders (ATROs) govern certain aspects of the divorce. These are standard orders that are included on the Summons, one of the pleadings you file as part of the initial divorce paperwork. One of these orders states that you cannot make changes to your estate plan before the divorce is finalized without giving notice to your spouse.
You have the right to update your will regarding your separate property — assets that are solely yours, not shared with your spouse. But again, notice to your spouse is required. When it comes to community property (like a house bought during the marriage with community funds) you can only give away your share, not your spouse’s. For example, you can’t leave the entire family home to your kids if half of it legally belongs to your spouse.
What You Can’t Do
There are also things you can’t do unless a written agreement with your spouse or you have a court order . For instance:
- You can’t change beneficiary designations on insurance policies or retirement accounts.
- You can’t remove your spouse from your life, health or other insurance or joint financial accounts.
- You can’t make moves that would dispose of or transfer property, even if it’s yours, without permission.
If you and your spouse agree on the changes and put that agreement in writing, then you can move forward. Alternatively, you can ask a judge to approve certain changes — but the judge will be looking for a good reason to make changes during the divorce process.
A Better Time to Update Your Estate Plan
Although you can update your Will or Trust during the divorce process, it is often recommended to wait until after your divorce is finalized. Once your property is formally divided and your legal relationship is settled, it is a cleaner slate to work from. Most divorce agreements even include a clause that advises you and your ex spouse to create new estate plans and officially end or reaffirm any inheritance rights of your ex-spouse.
While it may feel urgent to make changes to your estate planning documents now, you should consider whether it’s best to wait. If you do decide to act, make sure you follow the rules: give notice, get agreements in writing, and consult a lawyer if needed.
Lisa R. Murray is an experienced attorney in Collaborative Divorce and Mediation processes. She can help you through the challenges in your divorce and guide you in your goals of your post-divorce life. She can be reached at 650-523-6322.