Intersection of Estate Planning and Family Law

• Jurisdiction: California,United States
• Author: Written by Steven Brumer
• Citation: Vol. 45 No. 1
• Publication year: 2023

INTERSECTION OF ESTATE PLANNING AND FAMILY LAW

Written by Steven Brumer^*

Parties to dissolution matters transition quickly from "partners" to "adversaries." Much in the way married persons without prenuptial agreements perhaps unwittingly agree to be bound by the terms of the Family Code upon divorce, parties without estate planning documents have agreed to be bound by the Probate Code upon their death.

In essence, if one does not make an estate plan, the State has made an estate plan for you. As the rock band Rush said best in their song, Freewill: "If you choose not to decide, you still have made a choice."¹

Probate Code section 6122 provides that dissolution or annulment revokes a disposition of property to a former spouse and any provision in a will nominating a former spouse as personal representative of the estate of the decedent; however, this revocation only occurs upon completion of a case and entry of judgment.

What should an attorney do when a spouse dies while the case is pending? We know that death will end a marriage under Family Code section 310, but questions arise. What happens to the decedent's property? Does the fact that a petition for divorce is pending make any difference? What do we need to advise our clients about these possibilities?

This article addresses some issues and potential pitfalls presenting during the process of a dissolution matter as they relate to the death or incapacity of a party during the pendency of the action. I also offer practical solutions to protect the client and their property, while remaining mindful of the "Standard Family Law Restraining Orders"² listed on page two of the Summons (FL-110) as set forth in Family Code section 2040. We start with a brief review of section 2040 as it relates to estate planning, or lack thereof.

Like the automatic stay imposed by section 362 of the United States Bankruptcy Code, the purpose of Family Code section 2040 is to maintain the status quo of the parties' estate while the issues relating to property are analyzed and resolved. Among other things, section 2040 restrains parties from: removing minor children from the state, selling or mortgaging property, and from changing the beneficiaries of insurance coverage.

While there are certain things a party is restrained from doing, Family Code section 2040(b) explicitly excludes from the restraining orders the creation, modification, or revocation of a will, the revocation of a non-probate transfer (such as a revocable trust), the elimination of a right of survivorship in property, and the creation of an unfunded revocable or irrevocable trust.

In this way, the legislature has permitted—if not encouraged—those...