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Dealing With Break Ups in Your Estate Plan

Estate planning is often a snapshot of your life at a particular moment. The beneficiaries or agents named in your will and other estate planning documents reflects your relationships at that point in time. And as those relationships change, so should your estate planning.

Say you draft a will and name your best friend as executor. If you later have a falling out with her, it is probably a good idea to revise your will and name a new executor. Or suppose you leave a relative a large inheritance in your will. If you later learn that relative is irresponsible with money, you might decide it prudent to revoke your gift.

How Divorce Affects A Previously Signed Will

There is one circumstance where California law assumes a major life event alters your estate planning. If you are married, make a will, and subsequently divorce, any gift to your ex-spouse or any provision naming him or her as executor of your estate is considered revoked. This does not prevent you from making a new will after the divorce naming an ex-spouse as executor or leaving him or her property. But absent an express declaration on your part, the law simply presumes you no longer want your ex-spouse to participate in or inherit from your estate.

Note this presumption only applies to legally married spouses who later obtain a divorce or annulment. If you are living with your long-term boyfriend and subsequently break up, that has no immediate effect upon any estate document you have naming him as an agent or beneficiary. You must sign new documents to reflect the change in your relationship.

To illustrate this legal principle in practice, consider a recent New York case. Like California, under New York law a divorce revokes any appointment or gift under the ex-spouse’s will. In this case, a man signed a will naming his longtime male partner as executor and principal beneficiary of his estate. A year later, they held a “commitment ceremony,” as same-sex marriage was not recognized in New York at the time. The couple parted company on good terms in 2011, however, he did not amend or revoke his original will.

After his death in 2013, the man’s mother and sister asked a Manhattan probate judge to revoke the ex-spouse’s appointment as executor and nullify his inheritance. They argued the couple effectively married when they held their commitment ceremony, notwithstanding New York did not recognize same-sex marriage at the time. In other words, the probate court should treat their subsequent break up as a divorce and alter the man’s will accordingly.
The court rejected this argument. For one thing, the judge observed, New York’s same-sex marriage law did not apply retroactively. Second, the former partners were “under no illusion” they were ever legally married. Finally, and most importantly, the deceased had “ample time” to alter his estate planning documents after his break up. He chose not to do so, thereby demonstrating the will accurately reflected his intentions at the time of his death.

As this case demonstrates, there may be circumstances where you wish a former partner or spouse to still be a part of your estate plan. Still, whenever there is a major change in your personal situation, it is always a wise course of action to consult with an experienced California estate planning attorney. Contact the Law Office of Scott C. Soady in San Diego today if you would like to speak with an attorney right away.

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