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Effect of Divorce or Termination of Domestic Partnership on California Estate Plan

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After a divorce or a termination of domestic partnership in California, the parties involved often forget or fail to amend their estate plans to reflect the legal end of the relationship.  While it is a good idea to update your estate planning after a divorce or termination of domestic partnership, California law has statutes that govern the effect of a divorce or termination on the estate plan for those who do not update their documents.  Other states, such as Florida, have similar laws on the books.

What Is The Effect Of Divorce Or Dissolution Of Marriage On An Estate Plan In California?

The California Probate Code contains a “revocation by divorce” provision.  Section 6122 of the California Probate Code provides that unless the will expressly says otherwise, if after executing a will the testator’s marriage is dissolved or annulled, the dissolution or annulment revokes all of the following:

  1. Any disposition or appointment of property made by the will to the former spouse.
  2. Any provision of the will conferring a general or special power of appointment on the former spouse.
  3. Any provision of the will nominating the former spouse as executor, trustee, conservator, or guardian.

If any disposition or other provision of a will is revoked solely by section 6122, it is revived by the testator’s remarriage to the former spouse.

In the case of revocation by dissolution or annulment:

  1. Property prevented from passing to a former spouse because of the revocation passes as if the former spouse failed to survive the testator.
  2. Other provisions of the will conferring some power or office on the former spouse shall be interpreted as if the former spouse failed to survive the testator.

What Is The Effect Of The Termination Of A Domestic Partnership On A California Estate Plan?

The termination of a domestic partnership has generally the same effect on a California estate plan as a divorce.  The “revocation by termination of domestic partnership” statute, section 6122.1, applies only to wills executed on or after January 1, 2002.

In addition, just like divorces, if any disposition or other provision of a will is revoked solely by section 6122.1, it is revived by the testator establishing another domestic partnership with the former domestic partner.

What Is The Effect Of Divorce Or Termination On A Statutory Will?

The California Probate Code also has a statute for the effect of a divorce, dissolution, or termination of a domestic partnership on a California statutory will, section 6227 of the California Probate Code.  Section 6227 states:

(a) If after executing a California statutory will the testator’s marriage is dissolved or annulled, or the testator’s registered domestic partnership is terminated, the dissolution, annulment, or termination revokes any disposition of property made by the will to the former spouse and any nomination of the former spouse as executor, trustee, guardian, or custodian made by the will. If any disposition or nomination is revoked solely by this section, it is revived by the testator’s remarriage to, or entry into a subsequent registered domestic partnership with, the former spouse.

(b) In case of revocation by dissolution or annulment:

(1) Property prevented from passing to a former spouse because of the revocation passes as if the former spouse failed to survive the testator.

(2) Provisions nominating the former spouse as executor, trustee, guardian, or custodian shall be interpreted as if the former spouse failed to survive the testator.

(c) For purposes of this section, dissolution or annulment means any dissolution or annulment that would exclude the spouse as a surviving spouse within the meaning of Section 78. A decree of legal separation which does not terminate the status of spouses is not a dissolution or annulment for purposes of this section.

(d) This section applies to any California statutory will, without regard to the time when the will was executed, but this section does not apply to any case where the final judgment of dissolution or annulment of marriage occurs before January 1, 1985; and, if the final judgment of dissolution or annulment of marriage occurs before January 1, 1985, the case is governed by the law that applied prior to January 1, 1985

Does A Legal Separation Revoke An Estate Plan?

No.  Sections 6122 and 6227 both explicitly provide that a decree of legal separation which does not terminate the status of spouses is not a dissolution for purposes of these sections.

California law does a good job of looking out for the testator who fails to update their estate planning after a divorce, dissolution, annulment, or termination of domestic partnership.  However, the ideal way to deal with the aftermath of a divorce or termination is to execute new estate planning and testamentary documents, rather than relying on California law to effect the changes to the estate plan.

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