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Can You Change Your Will During a Divorce?

I am often contacted by people going through a divorce. They want to change their will and change it fast so that the evil-x (or soon to be ex) gets nothing… and I mean NOTHING!

Often they have already filed or been served with the summons. They may have read it to find that they are some automatic temporary restraining orders.   It goes into a lot of topics (the whole code section is pasted below) but for our purposes the question is about giving your stuff away after death because I am an estate planning lawyer.

YES you can make a new will and YES you can make a trust. You can’t “fund” the trust but you can make it. Generally that would be coupled with a pour over will. This might create a probate if you die before the trust is funded. However, what’s better a probate or your evil-x getting some of your assets?

The key is working with a qualified estate planning attorney so you do what you are allowed to do and not do things against the temporary orders.

Contact me with questions.  -John

P.S. Here is the relevant family code section. I added some highlights:

CALIFORNIA CODES FAMILY.CODE SECTION 2040-2041
2040.  (a) In addition to the contents required by Section 412.20 of
the Code of Civil Procedure, the summons shall contain a temporary
restraining order:
(1) Restraining both parties from removing the minor child or
children of the parties, if any, from the state without the prior
written consent of the other party or an order of the court.
(2) Restraining both parties from transferring, encumbering,
hypothecating, concealing, or in any way disposing of any property,
real or personal, whether community, quasi-community, or separate,
without the written consent of the other party or an order of the
court, except in the usual course of business or for the necessities
of life, and requiring each party to notify the other party of any
proposed extraordinary expenditures at least five business days
before incurring those expenditures and to account to the court for
all extraordinary expenditures made after service of the summons on
that party.
Notwithstanding the foregoing, nothing in the restraining order
shall preclude a party from using community property, quasi-community
property, or the party’s own separate property to pay reasonable
attorney’s fees and costs in order to retain legal counsel in the
proceeding. A party who uses community property or quasi-community
property to pay his or her attorney’s retainer for fees and costs
under this provision shall account to the community for the use of
the property. A party who uses other property that is subsequently
determined to be the separate property of the other party to pay his
or her attorney’s retainer for fees and costs under this provision
shall account to the other party for the use of the property.
   (3) Restraining both parties from cashing, borrowing against,
canceling, transferring, disposing of, or changing the beneficiaries
of any insurance or other coverage, including life, health,
automobile, and disability, held for the benefit of the parties and
their child or children for whom support may be ordered.
  (4) Restraining both parties from creating a nonprobate transfer
or modifying a nonprobate transfer in a manner that affects the
disposition of property subject to the transfer, without the written
consent of the other party or an order of the court.
(b) Nothing in this section restrains any of the following:
   (1) Creation, modification, or revocation of a will.
(2) Revocation of a nonprobate transfer, including a revocable
trust, pursuant to the instrument, provided that notice of the change
is filed and served on the other party before the change takes
effect.
(3) Elimination of a right of survivorship to property, provided
that notice of the change is filed and served on the other party
before the change takes effect.
(4) Creation of an unfunded revocable or irrevocable trust.
(5) Execution and filing of a disclaimer pursuant to Part 8
(commencing with Section 260) of Division 2 of the Probate Code.
(c) In all actions filed on and after January 1, 1995, the summons
shall contain the following notice:
“WARNING: California law provides that, for purposes of division
of property upon dissolution of marriage or legal separation,
property acquired by the parties during marriage in joint form is
presumed to be community property. If either party to this action
should die before the jointly held community property is divided, the
language of how title is held in the deed (i.e., joint tenancy,
tenants in common, or community property) will be controlling and not
the community property presumption. You should consult your attorney
if you want the community property presumption to be written into
the recorded title to the property.”
(d) For the purposes of this section:
(1) “Nonprobate transfer” means an instrument, other than a will,
that makes a transfer of property on death, including a revocable
trust, pay on death account in a financial institution, Totten trust,
transfer on death registration of personal property, or other
instrument of a type described in Section 5000 of the Probate Code.
(2) “Nonprobate transfer” does not include a provision for the
transfer of property on death in an insurance policy or other
coverage held for the benefit of the parties and their child or
children for whom support may be ordered, to the extent that the
provision is subject to paragraph (3) of subdivision (a).
(e) The restraining order included in the summons shall include
descriptions of the notices required by paragraphs (2) and (3) of
subdivision (b).
2041.  Nothing in Section 2040 adversely affects the rights, title,
and interest of a purchaser for value, encumbrancer for value, or
lessee for value who is without actual knowledge of the restraining
order.