What are your options if your spouse named someone other than you as a beneficiary on a community property life insurance policy or retirement account?

California Probate Code Section 5021 states that: 

 (a) In a proceeding to set aside a nonprobate transfer of community property on death made pursuant to a provision for transfer of the property executed by a married person without the written consent of the person’s spouse, the court shall set aside the transfer as to the nonconsenting spouse’s interest in the property, subject to terms and conditions or other remedies that appear equitable under the circumstances of the case, taking into account the rights of all interested persons.

(b) Nothing in subdivision (a) affects any additional remedy the nonconsenting spouse may have against the person’s estate for a nonprobate transfer of community property on death without the spouse’s written consent.

Therefore, a court is permitted to set aside a nonprobate transfer of community property (for example, the naming of someone other than a spouse as a beneficiary of a community property retirement account) if the other spouse does not consent.

Many financial institutions forms and life insurance forms have a place where spousal consent must be indicated by his or her signature. That being said, if there is no place for a spouse to sign, you should contact the financial institution to see about how to fulfill this requirement.

Divorce and re-marriage can have a significant affect on the estate plan you have in place.

First and foremost, in California, an "Automatic Temporary Restraining Order" is in effect during the marriage dissolution process. This generally hinders your ability to do estate planning as the law wants to avoid changes in your financial position during the pending divorce. 

Beneficiary Designations

If you designated your ex-spouse as a beneficiary of an asset with a beneficiary designation, for example, your retirement account, this designation is automatically revoked as a result of your divorce.

It's important to remember, however, that the divorce does not revoke the designation of your ex-spouse as the beneficiary of life insurance policies. It's therefore important to take stock of all of your assets and ensure that all beneficiary designation forms are properly updated during the estate planning process.

Remarriage

If you created an estate plan while you were single and then got married, your estate planning documents may be overridden at the time of your death, if your spouse survives you.

Your surviving spouse is entitled to the "statutory share" of your probate or trust estate. More details will be provided in another post; however, just note that if you have an existing estate plan and you get married, you must take steps to ensure that your estate plan will still be enforced despite your marriage. Most often, this can be a statement in your estate planning documents which states that you intend for your estate plan to be effective even though you recently were married.

Marriage brings with it many joys, but divorce is a precipitating event that forces many people to revisit the estate planning process. If you're going through a divorce, are contemplating divorce, or have completed a divorce, it's important to see what impact it may have on your estate plan.

One vital part of the estate planning process is making sure that assets with beneficiary designations are updated to be consistent with the other provisions of your estate planning documents. In general, this means that you want these assets to be distributed in a manner that is similar to how the other assets in your trust are distributed.

Assets with Beneficiary Designations

Generally, assets with beneficiary designations include life insurance policies, retirement accounts (such as IRAs and 401ks), as well as Pay-on-Death (aka "POD") accounts. 

Married Persons

In cases where spouses are married, it is often beneficial to have each spouse name one another as the primary beneficiary of retirement accounts. This gives a spouse the chance to inherit the other spouse's retirement account and continue the tax-deferred growth of that asset. In this scenario, usually the couples' joint living trust will be named as the secondary beneficiary on the retirement account.

Naming Minors as Beneficiaries

If your plan calls for naming minors as beneficiaries, you will want to make sure that the forms provide that the money will be held in a custodial account (often called "CUTMA" accounts) until a certain specified age (usually between 18 and 25). Without having such a provision, it's possible that a special person has to be appointed by a Court to receive and account for the money.

For some of you, especially those of you who have been diligent in contributing towards your retirement accounts, these types of assets can represent a significant portion of your assets. By planning properly, you not only ensure that the proper people receive these assets, but also significantly reduce potential tax consequences.

Once your lawyer has produced draft documents to your specifications, the final step is to go in to the estate planning lawyer's office to have all of them signed. Because of the formalities involved, we have a strong preference for having our clients come to our office in Los Angeles so that we can oversee the entire process. Doing so allows us to have one final review with the client and to make any last-minute modifications to the documents before having them executed. It also allows us to make sure that the proper legal procedure is being followed as the documents are being signed.

If Coming to the Office is Not Convenient

On some occasions, where a client is not able to come to our office, we may arrange to visit the client and their home. This allows us to oversee the execution of the documents, but makes it difficult to make any last-minute changes. Additional witnesses may also need to be called to the client's home.

Finally, in instances where a client lives too far from our offices in Los Angeles County, California, we will prepare a detailed memo about how the documents should be signed. 

Post-Meeting Steps

After the meeting to sign the documents, you will be given an overview of the steps to ensure the effectiveness of your estate planning documents. These include:

1. The lawyer will take care of the process of recording any real property deeds to transfer them to your trust.
2. If you've created a revocable living trust, this means making sure that you properly re-title your assets in the name of the trust. The lawyer will likely have taken care of this with respect to any real estate that you own, but it is often up to the client to ensure that this is done with respect to financial accounts (the lawyer is often available for guidance).
3. Ensuring that the beneficiary designations on your life insurance policies and retirement accounts are updated in coordination with your estate planning documents.
4. Making your family aware of where you keep those estate planning documents in case something happens. However, in our experience, it may not be advisable to share the contents of your estate planning documents, as you may amend them and therefore set false expectations of the beneficiaries you've named in them.

That's pretty much it! After that, you should probably contact your estate planning lawyer every 2-3 years or whenever there's a major life event such as the birth of a new child or the death of a family member. It's also a good idea to contact your estate planning lawyer if there's a substantial change in your net worth.