This month the latest celebrity gossip was the petition filed by Angelina Jolie-Pitt for the dissolution of her marriage to Brad Pitt. This affects estate planning like no one’s business.
First, this means that if a married couple has already done their estate planning, which usually means the following documents:
- Durable powers of attorney; and
- Advance health care directives
And that these estate planning documents drafted and executed during happier times that named each other as spouses to be their agents – some of these documents need to be updated ASAP.
Let’s go through this.
If you have a durable power of attorney that says if you are alive but not well that your spouse should make financial decisions for you then this needs to be redone so that you can name someone else to make financial decisions for you in the durable power of attorney. It is easy to update your financial power of attorney. You can simply have your attorney draft and execute a new financial power of attorney that states in the event you are alive but not well that someone other than your spouse should make financial decisions for you. If you have considerable assets, you can name a private corporate fiduciary (a trust company for example) or a private professional fiduciary to make financial decisions for you. This is often a good idea as a fiduciary will make decisions in your best interests and not be involved in any drama.
This the same idea for the advance health care directive. You will want to execute a new advance health care directive to state that if you are not able to make your own medical decisions that someone other than your spouse can make medical decisions for you. You can name an adult child, someone in your own family or a family friend to make medical decisions for you. You may be able to also name a private professional fiduciary to also make medical decisions for you, but you need to ensure that such a private professional fiduciary would be willing.
Updating these two documents, the durable power of attorney and advance health care directive, is easy to do and can be done privately without violating any of the automatic stays that come into play in filing for a California divorce or dissolution of marriage.
That gets to the next concern: the automatic temporary restraining orders placed on the divorcing parties for California divorces. When either party files a petition for dissolution of marriage, legal separation or annulment in California, there are an automatic temporary restraining orders on the parties regarding manipulating community property assets while the divorce is pending.
The actual petition on FL-100 form states on the bottom of the 3 page the following notice:
NOTICE—CANCELLATION OF RIGHTS:
Dissolution or legal separation may automatically cancel the rights of a domestic partner or spouse under the other, domestic partner’s or spouse’s will, trust, retirement plan, power of attorney, pay-on-death bank account, survivorship rights to any property owned in joint tenancy, and any other similar thing. It does not automatically cancel the right of a domestic partner or spouse as beneficiary of the other partner’s or spouse’s life insurance policy. You should review these matters, as well as any credit cards, other credit accounts, insurance policies, retirement plans, and credit reports, to determine whether they should be changed or whether you should take any other actions. Some changes may require the agreement of your partner or spouse or a court order.
The Summons that is part of the dissolution process also contains standard family law restraining orders for the parties. This is found on the FL-110 Summons form and page 2 states in part:
“Starting immediately, you and your spouse or domestic partner are restrained from: ….
- creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court. Before revocation of a nonprobate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party.”
This means that the community property of the parties during the dissolution proceedings cannot be transferred or modified as to ownership or existing estate planning documents there must be a notice of change filed and served on the other party.
What can be done are new wills and trusts that do not affect the ownership of the assets, but are put in place to capture the assets once the divorce is finalized. The creation of a new separate property trust by a divorcing spouse to hold title to already existing separate property assets and to be a holding tank for the acquisition of the marital property once the divorce is finalized or the notice of the change has been provided is what needs to be done.
So while Angelina and Brad cannot dissolve any existing community property trusts or maneuvering existing community property assets, they can each draft new wills, new separate property trusts for assets held separately and also execute new durable powers of attorney and advance health care directives while their divorce is pending.
If you have questions about how this works for you, consult with one of the TLD estate planning or family law attorneys about your matter. Our offices are in Long Beach, Donwey, Irvine and Beverly Hills.