What to do with your estate plan after a California divorce, including joint living trusts.
You just went through a divorce. Your estate plan probably still names your ex-spouse as beneficiary, trustee, and agent. That needs to change.
California law provides some automatic protection when your divorce is finalized, but it doesn't fix everything. Your beneficiary designations on retirement accounts and life insurance are largely untouched by divorce. If you and your spouse had a joint living trust, that trust should be revoked and replaced. This article walks through what to do in the so you don't accidentally leave your ex in charge of your estate.
Short answer: kind of. Long answer: it's complicated, and "kind of" is not a phrase you want associated with your estate plan.
Here's what California law actually says - and where people get tripped up.
Under Probate Code § 6122, if you had a will before your marriage ended, a final divorce or annulment automatically revokes three things as to your ex-spouse:
Your ex gets treated as if they died before you did. So if your will said "I leave everything to my spouse, and if they predecease me, to my kids," your kids would inherit. Not your ex.
Similar rules apply to revocable trusts and many non-probate transfers - things like transfer-on-death (TOD) accounts and payable-on-death (POD) designations. Under Probate Code §§ 5600–5604 and related sections, provisions favoring a former spouse generally fail once the dissolution or annulment is final.
So the basic concept - that divorce often knocks out gifts and fiduciary roles for an ex - is correct under California law.
Most married couples own their home in joint tenancy with right of survivorship. If one owner dies, the surviving joint tenant automatically receives the entire property outside of probate.
After a final divorce, California law provides important protection under Probate Code §5601. A joint tenancy between ex-spouses is automatically severed as to the deceased ex-spouse’s interest. This converts the ownership to tenancy in common. The deceased’s share no longer passes automatically to the surviving ex-spouse by right of survivorship. Instead, it goes according to the deceased’s will, trust, or California intestate succession laws, typically to children, a new spouse, or other heirs.
There are important limitations. This automatic severance only applies after a final judgment of dissolution or annulment. A legal separation does not trigger it. The severance also does not apply if the joint tenancy could not be severed by the decedent at the time of death, or if there is clear and convincing evidence that the decedent specifically intended to preserve the joint tenancy in favor of the former spouse.
Even though § 5601 usually protects your heirs, it is still smart not to rely solely on the statute. The deed on public record still shows “joint tenants,” which can create clouds on title and complications with lenders, title insurance companies, or future sales.
The divorce court usually divides the property as part of the judgment, awarding it to one spouse or ordering it sold. The judgment often includes language that severs the joint tenancy or orders a new deed. If the divorce is final but the property was never formally divided or retitled, make sure your ex-spouse signs a deed transferring their interest to you (or converting title to tenancy in common). Don't wait on this. Do it while the issue is still top of mind to you and him. You will need title in your name so you can then transfer title to your new living trust that you create after the divorce is final.
Timing is everything. The automatic revocation only kicks in after the divorce is final. If something happens to you before the judgment is entered, your soon-to-be-ex could still inherit everything.
Important note: Legal separation does not trigger these automatic revocations. Only a final judgment of dissolution (divorce) or annulment does. This is a common gotcha. Many people assume “we’re separated” is enough, but until the divorce is finalized by the court, the old documents still treat your spouse as fully in play.
Some assets are completely unaffected. Life insurance, IRAs, and 401(k)s don't automatically change - you need to actually change the beneficiary designations.
Documents created after the divorce aren't affected. If you drafted a new trust after your divorce was final, there's nothing to revoke. You're starting fresh.
Before you revoke your trust, update your beneficiary designations. This is the highest-priority item because:
Contact your financial advisor, HR department, retirement plan administrator, life insurance agent, and bank, and update every beneficiary designation. While you're at it, update your contingent beneficiaries too. Many people name a spouse as primary and forget that the contingent beneficiary might be your ex's mother.
This is where things get complicated, and it's a question we're seeing frequently right now.
Many California married couples create a joint revocable living trust. Both spouses are co-trustees and co-grantors. The trust holds your community property and sometimes separate property. It names the survivor as the primary beneficiary, with children or other heirs named as remainder beneficiaries.
Here's the core problem: a joint living trust is a single legal document created by two people. Unlike a simple will, you generally can't just amend your half of it after a divorce. The trust was built around your marriage. It needs to be unwound. But you can't unwind it (revoke it) until the divorce is final.
Not really. Here's what California law actually allows.
When a divorce or legal separation petition is filed and the other spouse is served, Automatic Temporary Restraining Orders - ATROs - kick in immediately under Family Code § 2040(a). No hearing required. No judge's signature. They're automatic.
Among other things, ATROs prevent both spouses from transferring, encumbering, concealing, or otherwise disposing of property - community, quasi-community, or separate - without the other spouse's written consent or a court order. There's a narrow carve-out for ordinary living expenses and normal business operations, but that's it.
ATROs also specifically restrict either spouse from creating or modifying a nonprobate transfer in a way that affects how property passes at death.
Your joint revocable living trust? Classic nonprobate transfer. So yes - the trust is squarely in the crosshairs.
The whole point of ATROs is to freeze the marital estate in place while the divorce sorts itself out. The law doesn't trust either spouse to make unilateral decisions about shared property when the marriage is actively dissolving.
The goal is to prevent one spouse from quietly reshuffling assets before the community property division is finalized. Courts take violations seriously - an ATRO violation can result in a contempt finding and can make you look terrible to the judge who's about to divide your estate.
If you need to make changes to your trust during a pending divorce, you have two clean options: get your spouse to agree in writing, or get a court order authorizing the specific change. Those are your lanes.
Consult your family law attorney before making any changes to your joint trust while the divorce is pending.
Once the divorce is final, here is what needs to happen with the joint trust:
Step 1: Revoke the joint trust.
Both former spouses should sign a formal written revocation of the joint living trust. In practice, cooperation between divorcing spouses on this point varies, but a clean mutual revocation is the cleanest outcome.
Step 2: Transfer assets out of the trust.
Any real property held in the joint trust will need to be retitled. If the family home was awarded to you in the divorce, it needs to be deeded out of the joint trust and either into your name individually or into your new individual trust.
Step 3: Create your new individual living trust.
You need a new estate plan built around your life as it is now, not as it was during your marriage. That means:
Your new trust should name the beneficiaries you actually want, with appropriate provisions if minor children are involved.
It happens. If your former spouse refuses to sign a joint revocation, your options depend on the specific trust language and the terms of your divorce decree. Many joint trusts include provisions that allow either spouse to revoke as to their share of the trust assets unilaterally.
If your divorce decree required both parties to cooperate on the trust revocation and your ex is refusing, that's a family law enforcement issue. If the trust language itself permits unilateral action, your estate planning attorney can advise on whether that's a viable path.
Also, the divorce decree will allocate assets between you and your spouse. This will require retitling the assets. Assets in your joint trust must be transfer to your or your ex. Once the transfers are complete, the trust may no longer own any assets - it's empty. So your priority should be on getting ownership of the assets that our yours - that's a higher priority than revoking your joint trust.
If you have minor children with your ex-spouse, your post-divorce estate plan needs to address what happens to your assets if you die while they're still minors.
A few things to know:
Your ex will likely manage assets inherited by your minor children. Under California law, a surviving parent generally has the right to manage a minor child's inherited assets as their natural guardian. If you die and leave assets to your minor children outright, your ex-spouse may end up controlling those assets. A properly structured trust can prevent this by naming an independent trustee to manage the assets until the children reach an age you specify.
When you create your new living trust after the divorce, have your estate planning attorney include asset protection trust provisions for your children, and name someone from your side of the family - parent, brother, sister, or close friend, as the trustee of your childrens' separate asset protection trusts. Doing this will keep your childrens' inheritance outside the control of your ex. Read more about asset protection trusts for your children.
Don't name your minor children directly as beneficiaries on life insurance or retirement accounts. Minors can't legally own these assets. A court will appoint a guardian of the estate to manage them, which is expensive and unnecessary. Name your living trust as the beneficiary instead, and let your trust direct the assets.
Review your guardianship nomination. Your will nominates a guardian for your minor children if both parents are deceased. After a divorce, you may want to revisit who you've named as backup guardian in the event both you and your ex-spouse are gone.
Your financial power of attorney and healthcare directive almost certainly name your former spouse as your agent. These need to be revoked and replaced immediately after your divorce.
California Probate Code Section 4154 automatically terminates a power of attorney when the principal and agent divorce. But you shouldn't rely on the statute. Revoke the existing documents in writing, create new ones naming someone you trust, and make sure your doctor, bank, and any other relevant institutions have copies of the new documents.
The entire process, from your first meeting to a signed, complete estate plan, could be done in two to three weeks. And, some estate planning law firms, like ours, can do the whole process virtually: two Zoom meetings and one signing session.
Does my divorce automatically cancel my old living trust? Not completely. Divorce does automatically revoke any gifts to your ex-spouse and any nomination of them as trustee (or in other fiduciary roles) inside a revocable living trust. But it doesn't dissolve the joint trust itself or automatically retitle the assets that are still held in it.
Can I just amend my old trust instead of creating a new one? For a joint trust created with your spouse, no. A joint trust needs to be formally revoked and replaced, not amended. You can't amend your joint trust, where your ex was a party to the trust, and make it an individual trust. You need to create a new trust.
What if my divorce is still in progress? Wait until it's final before revoking the joint trust, unless your divorce attorney advises otherwise. California's automatic temporary restraining orders generally restrict changes to community property arrangements while the divorce is pending.
Who should I name as successor trustee now that my spouse is out of the picture? Not your ex spouse. Name a trusted adult child, sibling, close friend, or a professional trustee. The key is that it needs to be someone with the time, judgment, and integrity to manage your affairs. If you don't have an obvious candidate, a professional trustee is worth considering.
How much does a new estate plan cost after divorce? At Clark Allison, a complete individual estate plan starts at $3,000 for a single person. That includes your revocable living trust, pour-over will, financial power of attorney, and advance healthcare directive. You can see our pricing here.
Do I need to live near your office? No. We work with clients throughout California virtually. Two Zoom meetings, one signing session you can do from home, and your plan is done.
We serve clients from our El Dorado Hills, Roseville, San Luis Obispo, and San Diego offices, and virtually from anywhere in California.
What community property means for your living trust, your taxes, and what happens in California when one spouse dies.
The questions California families ask most about estate planning from living trusts vs. wills to probate costs, answered honestly and clearly.
If your parent is aging and doesn't have an updated estate plan, time may be running out. Here's how to help them before it's too late.