Remarriage: It Impacts Your Estate Plan

December 1, 2018

Q&A with Marisha N. Charbonnet, Attorney at Law, Family Security Law Group, APC

It is important is to create a will or trust to protect your family. It is equally important to UPDATE that document when you remarry, as a failure to do so could result in family conflict and the unintentional disinheritance of a loved one.

What happens if I don’t remove my ex from my will or trust – can my ex still get part of my assets?

California law provides that gifts made to a spouse in a will or trust that was created while the couple was married are, in most cases, considered automatically revoked upon the couple getting divorced-unless there is clear evidence of intent for the ex-spouse to receive the gift despite the divorce. The best way to avoid your estate having to deal with claims from your ex-spouse is to update your will or trust after a divorce to remove any unwanted gifts to your ex.
If you made provisions in your will or trust for a spouse and then get divorced and remarried you can’t expect those same provisions that applied to your prior spouse to carry over to your new spouse.

What if I haven’t updated my will to include my new spouse?

If you have a will in place prior to marriage and fail to update it to mention your new spouse, either to state what assets your spouse is to receive, or to state that your spouse is not to receive any of your assets, the law will presume that you simply forgot to mention your spouse and will allow your spouse to receive a certain portion of your assets anyway.
If you want to control what your spouse does or does not receive, rather than leaving that up to a judge, you need to specifically document your wishes in a will or trust.

Should Powers of Attorney be updated if I get remarried?

Yes. If you appoint a spouse as an agent under a Power of Attorney during marriage and then later get divorced, that appointment is considered automatically revoked unless it can be shown that you still wanted your ex to act as your agent after the divorce. Consequently, if you haven’t named a new agent in place of your ex, you may be left without anyone to act under your Power of Attorney. You should update your Power of Attorney if you want your new spouse to be designated as your agent.

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