Estate planning is an often-overlooked priority for individuals going through a divorce. Most people aren’t aware of the fact that divorce may legally affect their estate planning documents and beneficiary designations. Fewer still understand how California’s Standard (Automatic) Temporary Restraining Orders (“ATROs”) govern their ability to modify their estate plan during the divorce proceedings.

In California, the ATROs are placed into effect upon the filing of the initial divorce papers.

The ATROs are meant to, in large part, maintain the status quo of the marital property pending final judgment. This is done by limiting certain transfers of property, which may in turn limit the ability of an individual to extricate themselves from the joint estate plan and create a new plan of their own.

It is important to note that the ATROs do not affect an individual’s ability to create a new Advance Health Care Directive or Durable Power of Attorney while the divorce is pending. These documents grant your nominated agent the power to make financial or medical decisions on your behalf should you become incapacitated. You should strongly consider updating these sooner rather than later to nominate someone other than your spouse as your agent.

You may also be able to take other actions during the divorce proceeding without triggering the ATROs, but these actions may require notice to or the consent of the other spouse.

While it may be tempting to wait until the divorce is finalized to discuss a new estate plan with your attorney, waiting can have serious unintended consequences. For instance, if you should die before the marital status is dissolved, you will be considered married for purposes of the distribution of your estate.

If you are contemplating modifying your estate plan while your divorce is pending, it is imperative that you consult with an experienced and qualified estate planning attorney, as failure to follow the ATROs can result in legal sanctions. For further information about this or related matters, please contact Nicole Warmerdam at 650-342-9600 or nwarmerdam@carr-mcclellan.com.