Updating Your Estate Plan After Divorce, Remarriage, or a New Child in California

by Michael Hackard

Publication Date November 10, 2026 in Estate Planning

One unchanged form can outweigh a lifetime of good intentions. The son in this composite I’ll call Dennis, and I have changed the details. Dennis came to us two years after his father died. He was not angry at first. He was confused, the way people are when the world does not behave the way they were certain it would. His father had divorced Dennis’s mother when Dennis was in college, remarried a few years later, and divorced again. He died unmarried, with a 401(k) from his employer, a life insurance policy, and a home he had owned for decades. Dennis was his only child.

The problem was the beneficiary designation on the 401(k). His father had named his first wife when he opened the account in his forties, and he never changed it. He assumed, the way most people assume, that the divorce had taken care of it. It had not. Because the 401(k) was an employer plan governed by federal law, the plan paid the person whose name was on the form: Dennis’s mother. She had not expected the money, and what she did with it was up to her. Dennis had no claim he could enforce against the plan. One form, never updated, decided where the largest asset in the estate went.

I have seen versions of this pattern throughout my career. The details change. The lesson does not.

When California Law Protects You, and When It Doesn’t

What California Law Does Automatically After Divorce

California’s automatic revocation rules do real work. Under Probate Code section 6122, if your marriage is dissolved or annulled after you sign your will, the divorce revokes the will’s gifts to your former spouse and any provision naming your ex as executor or trustee, unless the will expressly says otherwise. The property passes as if your former spouse had died before you.

Other statutes do the same for other documents. A power of attorney naming your former spouse as your agent is revoked by the divorce (section 4154), and so is a health care power of attorney naming your former spouse (section 4697). For most nonprobate transfers, section 5040 provides that a transfer to a former spouse fails if, at your death, your ex is not your surviving spouse because of the divorce. That covers gifts in a revocable trust, payable-on-death and transfer-on-death accounts, and IRA beneficiary designations. A joint tenancy with your former spouse is severed the same way (section 5042). These two sections apply where the divorce became final on or after January 1, 2002 (section 5048).

The exceptions count. Section 5040 does not reverse a transfer you could not renounce at your death, a transfer you clearly and persuasively meant to survive you for your ex, or a transfer you were forced by court order to continue. There are also two big categories that are totally outside of the statute: life insurance, which is specifically exempted in section 5040, and employer retirement plans that are overseen by federal law under the federal Employee Retirement Income Security Act, also known as ERISA.

Why You Should Update the Forms Anyway

Even where section 5040 applies, the bank or brokerage holding the account is generally protected if it pays the beneficiary named on its form, unless it has received a court order or written notice of an adverse claim first (section 5003). The statute expressly leaves the family to sort out who owns the money afterward. In other words, the law may be on your children’s side, and they may still have to go to court to get the money back from your ex.

This is where the common estate planning mistakes families make in California become most costly. The assumption that the divorce handled everything is a reasonable inference from an incomplete understanding of the law. The consequences of that incomplete understanding are out of all proportion to the mistake.

Updating Your Estate Plan After Divorce in California

The ERISA Trap: Why Your Ex-Spouse May Still Inherit Your 401(k)

This is the section I want you to read twice.

Most employer-sponsored retirement plans, including 401(k) and pension plans, are governed by ERISA. On the question of who receives the benefits, ERISA displaces state law. The U.S. Supreme Court settled this in Egelhoff v. Egelhoff, 532 U.S. 141 (2001). A Washington statute, much like California’s section 5040, revoked a former spouse’s beneficiary designation upon divorce. The ex-wife was still named on her late former husband’s employer life insurance and pension, and his children from an earlier marriage relied on the statute to claim the benefits. The Court held that ERISA preempted the statute, because ERISA requires plans to be administered according to the documents that govern them.

In practical terms: if you named your spouse on your 401(k) when you opened the account, divorced ten years later, and never updated the form, your ex-spouse may receive that account when you die. Your will cannot override it. Your trust cannot override it. The divorce judgment does not change it by itself. The form controls. The beneficiary designations in California estate planning that most people treat as a formality are, for ERISA plans, the document that decides the outcome.

ERISA normally does not apply to individual IRAs, so section 5040 can render an IRA designation identifying a former spouse invalid. However, the institution still can pay the name on the form; therefore, the safe route is the same: Change the designation right after the divorce.

Life Insurance Beneficiary Designations Are Not Covered by Section 5040

Life insurance passes by contract, and the insurer pays the named beneficiary. Section 5040 expressly excludes life insurance policy provisions from the definition of a nonprobate transfer, so California’s automatic revocation does not reach them. An employer-provided group policy may also be governed by ERISA, as the policy in Egelhoff was. If you named your spouse when you bought the policy and never changed it, your ex-spouse may receive the death benefit regardless of what your will or trust says or what you told your children.

What You Must Update, and in What Order

After a California divorce, start with the documents that carry the most money and the least automatic protection: beneficiary forms for every retirement account, life insurance policy, payable-on-death account, and transfer-on-death account. Contact each institution directly, submit a new form, and get written confirmation. Do not assume the divorce judgment or a letter from your lawyer accomplishes this.

Then turn to the core documents. Sign a new will. Amend or restate your revocable trust and name successor trustees you trust today. Sign a new power of attorney and a new health care directive. Review how your property is titled and whether it matches the divorce judgment. Updating your will in Sacramento or anywhere else in California matters even though section 6122 does part of the work, because a revoked gift leaves a gap, and the will should say who takes instead.

One more item families overlook. A child support obligation fixed by a divorce judgment or agreement does not end when the paying parent dies. California courts have held that it survives as a charge against the parent’s estate, so your plan should account for it.

Estate Planning After Remarriage in California

How Community Property Rules Apply the Moment You Remarry

Remarriage does not trigger automatic protections. It creates new obligations.

Under Family Code section 760, property acquired by a married person during the marriage while living in California is community property, except as otherwise provided by statute. Your new spouse acquires an interest in what you build together, and that interest does not disappear when you die. It can compete directly with what you meant to leave your children from a prior marriage.

Two more rules catch people. First, federal law: in most 401(k) and other defined contribution plans, if you die before receiving your benefits, your surviving spouse automatically receives them, and naming anyone else requires your spouse’s written waiver, witnessed by a notary or a plan representative. Second, the omitted spouse rule. If your will or trust was signed before the marriage and makes no provision for your new spouse, that spouse may be entitled to your half of the community and quasi-community property, plus a share of your separate property equal to an intestate share but no more than half of it (Probate Code section 21610). Exceptions apply, for example, where your documents show the omission was intentional or your spouse signed a valid waiver (section 21611).

The Blended Family Conflict: Protecting Your New Spouse Without Disinheriting Your Children

The blended family dispute is one of the most predictable inheritance conflicts I see in California litigation. A parent remarries. Updates nothing, or updates incompletely. Dies. The new spouse and the children from the prior marriage end up in court. Everyone is certain they know what the parent would have wanted. No one has documents that clearly say so.

The disputes between stepmothers and biological children in California that we handle in litigation are often preventable at the planning stage. The tools exist. Most people simply do not use them before the conflict starts.

Remarriage creates two legitimate interests. Your new spouse needs financial security. Your children from a prior marriage reasonably expect to inherit what you built before the new marriage. Those interests can coexist, but only with deliberate planning.

Trust Structures That Balance Competing Interests

The planning answer is well established. One common structure is a trust that pays the surviving spouse income for life and then passes the principal to the children from the prior marriage. Estate planners often use a form called a qualified terminable interest property, or QTIP, trust for this purpose. Your spouse is provided for, and your children are protected. Separate trusts for children from a prior relationship serve a similar purpose. Multi-generational trust planning in California gives families the tools to honor both sets of obligations without forcing them into competition.

These structures work only if someone builds them, deliberately, before the conflict arises. No one can build them after you die. From where I sit, once you are gone, the only tool left is litigation.

There is one trap for anyone who divorces and later reconciles. If your ex-spouse’s authority under a power of attorney or health care power of attorney was revoked solely because of the divorce, remarrying that same person revives it (sections 4154(b) and 4697(b)). The same is true of will provisions revoked solely by section 6122 (section 6122(b)). If revival is not what you want, sign new documents.

Adding a New Child: Why California’s Omitted Child Statute Isn’t Enough

What Probate Code § 21620 Covers, and What It Misses

California’s omitted child statute, Probate Code section 21620, protects a child born or adopted after you signed all of your testamentary instruments, if those documents make no provision for the child. The child receives the share he or she would have received had you died without any will or trust. The rule covers both wills and revocable trusts (section 21601).

There are exceptions under section 21621. The child takes nothing under the statute if the documents show the omission was intentional, if you had one or more other children and left all of your estate substantially to the omitted child’s other parent, or if you provided for the child outside the estate and intended that to take the place of a gift in your documents.

The protection is real, but it is also restricted and litigious. It does not include beneficiary designations, because those assets pass outside of the estate covered by the Act. It offers the child an intestate portion, which may have little relation to what you would have chosen. And all those exceptions are a factual topic anyone might dispute over after you are gone.

What Happens Without Explicit Provisions for a New Child

A child’s birth does not automatically amend beneficiary designations. If you want your new child to receive a piece of your retirement account or life insurance, you have to alter those documents. The same applies to the trust itself. A trust created before the kid is born does not identify the child, and using section 21620 to bridge that gap invites precisely the kind of factual disputes concerning intent and exclusions discussed above. This is the kind of arrangement most parents really intend. A trust can also specify the age the child receives an inheritance, and allow payouts for education and health in the meanwhile.

The Documents You Need to Review After Any Major Life Change

Every major life change, whether divorce, remarriage, or a new child, should trigger a review of the whole plan as one system.

That system includes your revocable trust, your will, your power of attorney, and your health care directive. It includes every beneficiary form on file with every bank, insurer, and plan administrator. It includes how your property is titled, because a home held in joint tenancy generally passes to the surviving joint tenant regardless of what your will says. The family home disputes in California estate litigation that reach us frequently trace back to property that was never retitled after a divorce or remarriage.

These documents are not in isolation. A will naming the appropriate persons means nothing if the retirement account names someone else. If the life insurance goes somewhere else, a trust that protects your children from a previous marriage means little. The system works when all the pieces are in place and fails when one element is out of date.

What Happens When Families Don’t Update

The patterns in California estate and trust litigation in this area are predictable, and they repeat.

An ex-spouse receives a retirement account because the form was never updated, and federal law leaves the family little room to change that. A new spouse and children from a prior marriage end up in court over a plan written before the remarriage. Both sides have legitimate grievances, both sides pay lawyers for years, and the estate shrinks while they do. A child born after the plan was signed receives a statutory share that bears no relationship to what the parent would have chosen.

These are the cases that explain why estate plans collapse in court, and they share a common origin: someone assumed the law had handled what they never got around to handling themselves.

Dennis’s father was not a careless man. He trusted that the divorce had resolved what he had not resolved himself. He was wrong about one form on one account, and that single oversight decided where most of his estate went.

The cost of updating a plan after a major life change is a small fraction of what the litigation costs when nobody does. If your family has gone through a divorce, a remarriage, or the birth or adoption of a child, have your estate planning attorney review the whole plan. And if a dispute over an outdated plan has already begun, that is the work we do.