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Estate Planning During Divorce
| Estate Planning Actions | Authority |
|---|---|
| 1.- What Can I Do Unilaterally? | |
| a. Create, modify, or revoke a will. | Fam C §2040(b)(1) |
| b. Create, but not fund, a new single settlor revocable or irrevocable trust. | Fam C §2040(a)(2), (b)(4) |
| c. If in the usual course of business or for the necessities of life, transfer, encumber, hypothecate, conceal, or in any way dispose of any property, real or personal, whether community, quasi-community, or separate. | Fam C §2040(a)(2) |
| d. Execute and file a disclaimer. | Fam C §2040(b)(5) |
| 2.- What Changes Can I Make With Notice To My Spouse Or RDP? | |
| a. Revoke a revocable trust. Notice must be filed and served on the party before the change takes effect. Follow revocation terms of trust exactly. | Fam C §2040(b)(2), (d)(1) |
| b. Revoke a transfer to the beneficiary of a "nonprobate transfer." Notice must be filed and served before the change takes effect. A "nonprobate transfer" includes primarily individual retirement accounts (IRAs) and life insurance. (Note: You can only revoke life insurance if child support or spousal support is not at issue under Fam C §2040(a)(3).) | Fam C §2040(b)(2), (d)(1) |
| c. Eliminate a right of survivorship for property (joint tenancy or community property with right of survivorship). Notice must be filed and served on the other party before the change takes effect. | Fam C §2040(b)(3) |
| 3.- What Changes Can I Make Only With My Spouse or RDP's Consent Or With A Court Order? | |
| a. Transfer, encumber, hypothecate, conceal, or in any way dispose of any property, real or personal, whether community, quasi-community, or separate, except in the usual course of business or for the necessities of life. | Fam C §2040(a)(2) |
| b. Create a "nonprobate transfer" or modify a "nonprobate transfer" in a manner that affects the disposition of property subject to the transfer. A "nonprobate transfer" includes, but is not limited to, revocable trusts, pension plans, employee benefit plans, IRAs, and life insurance. (Note: Pension plan beneficiaries are controlled by the Employee Retirement Income Security Act of 1974 (ERISA) (29 USC §§1001-1461), and the nonparticipant spouse is entitled to be the beneficiary under federal law.) | Fam C §2040(a)(4), (d)(1); Prob C §5000 |
| c. Fund a revocable or irrevocable trust. | Fam C §2040(a)(2), (4); see also Fam C §2040(b)(4) |
| 4.- What Changes Can I Make Only With A Court Order? | |
| Funding, creating, or modifying a nonprobate transfer if the other spouse or RDP does not consent. | Fam C §2040(a)(4), (d)(1) |
| 5.- What Changes Can I Not Make? | |
| Cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries on life, health, automobile, and disability insurance when child or spousal support is at issue. | Fam C §2040(a)(3) |
