Your divorce is final, and you are ready for a fresh start. But what about the will you signed years ago? If it still names your former spouse, could your ex inherit your estate? California law answers part of that question, but its automatic rules have important limits. Here is how divorce can reshape your will and where gaps may remain.
Divorce can cancel gifts to your former spouse
California treats a finalized divorce as a significant change to your estate plan. Unless your will expressly says otherwise, a final divorce or annulment generally cancels gifts to your former spouse under California Probate Code Section 6122.
This applies to a will you signed before your marriage ended. That automatic change takes effect only after a court enters a final judgment, so your spouse may inherit if you pass away while the divorce is still pending. A similar rule applies when a registered domestic partnership ends.
Legal separation does not have the same effect
Legal separation has a different legal effect. A court can divide property and set support in a legal separation, but it does not end your marriage. Because the marriage remains legally intact, the automatic rule does not apply. Your spouse can still inherit under your existing will unless you change it.
Executor appointments can end after divorce
Divorce can affect both inheritance and estate-management roles. An executor is the person you name to manage your estate, pay debts and distribute property after your death. A final divorce generally cancels your former spouse’s role as executor, along with any role as trustee, conservator or guardian. If you chose a backup executor, that person may step in. Without one, a court will usually appoint someone.
Other parts of your will usually stay in place
Divorce does not invalidate your entire will, however. Gifts to your children, relatives, friends and charities typically remain valid. The other choices you made when setting up your will also stay in effect. Your will may therefore reflect old assets or outdated wishes.
Backup beneficiaries may inherit instead
So who receives a gift your former spouse can no longer take? California law generally treats your former spouse as if they died before you. The property then passes to your backup, or contingent, beneficiary. For example, if your will leaves your home to your spouse or, if your spouse dies first, to your children, your children would typically receive it.
Without a backup, that share may pass under a residuary clause, which covers property your will does not specifically give away. It could also pass under intestacy rules, the default inheritance rules California applies when no valid instructions exist.
Updating your will can give you more control
Automatic rules can fill gaps, but they cannot fully reflect your current wishes. Reviewing your will soon after divorce, or even while your case is pending, lets you choose new beneficiaries and a new executor. The automatic restraining orders in California divorce cases generally still allow you to change a will.
Life insurance and retirement accounts follow separate beneficiary forms, and federal law may control some employer plans, so review those too. Speaking with an estate planning attorney can help you decide which updates fit your new chapter.
