TL;DR — Key Takeaways
- In California, a final divorce automatically revokes gifts to the former spouse in a will, and their appointment as executor or trustee, unless the will says otherwise.
- The same rule reaches revocable trusts and most other transfers at death, such as payable-on-death accounts. It does not reach life insurance.
- It also does not reach an employer 401(k) or pension. Federal law requires the plan to pay whoever is named on the plan’s beneficiary form, and the U.S. Supreme Court has held that state divorce rules cannot override it.
- A spouse who married you after you signed your will, and is not provided for in it, is generally entitled to a statutory share of your estate.
- After a divorce or remarriage, the beneficiary forms matter more than the will, and they have to be changed by hand.
A California divorce automatically revokes any gift to your former spouse in your will, along with their appointment as executor, trustee, or guardian, unless the will expressly provides otherwise. A parallel rule reaches revocable trusts and most other transfers that take effect at death. But the automatic revocation does not reach life insurance, and it cannot reach an employer-sponsored 401(k) or pension, because federal law governs those plans and requires them to pay whoever is named on the plan’s own beneficiary form. An ex-spouse left on that form will generally receive the account.
That gap is where outdated estate plans do real damage.
What divorce revokes automatically
Wills. Probate Code section 6122 provides that when a marriage is dissolved or annulled, the will is revoked as to three things, unless it expressly provides otherwise: any gift to the former spouse, any power of appointment given to the former spouse, and any nomination of the former spouse as executor, trustee, conservator, or guardian. The rest of the will stands, and the revoked gifts pass as though the former spouse had died first.
Two details matter. The rule is triggered by a final dissolution or annulment, not by a legal separation or a pending divorce. And if the former spouses remarry each other, the revoked provisions are revived.
Trusts and other transfers at death. Probate Code section 5600 applies a similar rule to nonprobate transfers: provisions in a revocable trust, payable-on-death and transfer-on-death designations, and similar arrangements that pass property to a former spouse at death. Such a transfer generally fails if the marriage was dissolved or annulled before the transferor’s death. It does not fail if the transfer was not revocable at death, or if there is clear and convincing evidence the transferor intended to preserve it despite the divorce.
Joint tenancy. A separate provision generally severs a joint tenancy between former spouses on a dissolution, so the survivor does not automatically take the whole.
What divorce does not revoke
Life insurance. Section 5600’s definition of the transfers it reaches excludes provisions of a life insurance policy. A former spouse named as beneficiary on a life policy generally remains the beneficiary until the owner changes the designation.
Employer retirement plans. This is the trap.
A 401(k), pension, or other employer-sponsored retirement plan is typically governed by ERISA, the federal statute regulating employee benefit plans. In Egelhoff v. Egelhoff (2001), the U.S. Supreme Court held that ERISA preempts a state law automatically revoking a former spouse’s beneficiary designation on divorce. The plan administrator pays the beneficiary named in the plan documents.
In Kennedy v. Plan Administrator for DuPont Savings and Investment Plan (2009), the Court went further. A divorce decree in which the former spouse waived any interest in the plan did not change the administrator’s duty to pay the named beneficiary, because the plan follows its own documents.
In Hillman v. Maretta (2013), a case involving federal employee life insurance, the Court held that federal law also preempted a state law giving the family a right to recover the proceeds from the former spouse after they were paid. Whether any post-payment claim against a former spouse can survive in the ERISA context remains an unsettled question, and it is not one a family should plan around.
The practical result: a former spouse left on the beneficiary form of an employer 401(k) or pension is generally going to receive it, regardless of the divorce, the decree, or what the will says.
If you are divorced and have not reviewed your beneficiary designations since, that review is worth doing before anything else. Call Bay Legal at (650) 668-8000 in Northern California or (213) 668-8000 in Southern California.
IRAs are different from 401(k)s
This is the distinction most commonly missed.
An individual retirement account is generally not an ERISA plan. It is not employer-sponsored in the way ERISA requires, so the federal preemption rule in Egelhoff does not apply to it in the same way. That means California’s section 5600 may operate on an IRA beneficiary designation naming a former spouse.
But “may” is doing real work. Whether a particular account is an ERISA plan, whether the IRA custodian will honor a state-law revocation without a court order, and how a dispute would be resolved all turn on facts. The reliable answer for an IRA is the same as for a 401(k): change the form. Why your IRA beneficiary form overrides your will covers how designations work.
The omitted spouse
The other side of the problem is a new spouse left out of an old plan.
If you marry after signing your will or trust and do not update it, your new spouse may be an omitted spouse under Probate Code section 21610. An omitted spouse is generally entitled to one-half of the community property and one-half of the quasi-community property belonging to the decedent, and a share of the decedent’s separate property equal to what the spouse would take by intestate succession, but not more than one-half of the separate property.
The exceptions. Section 21611 denies the share where the omission was intentional and that intention appears in the testamentary instruments; where the decedent provided for the spouse outside the estate, such as through life insurance or a transfer on death, intending it to be in lieu of a provision in the will or trust; or where the spouse validly waived the right to share, typically in a premarital agreement.
How it is paid. Section 21612 satisfies the share first from property not otherwise disposed of, and then proportionately from what the other beneficiaries would have received.
The omitted spouse rule protects the new spouse, but it does so by overriding the plan the decedent actually wrote, often in ways nobody intended.
What to update, in what order
After a divorce, or after a remarriage, this sequence addresses the largest risks first:
- Employer retirement plan beneficiary designations. The divorce decree will not fix these, and state law cannot. Only a new designation or a qualified domestic relations order changes who the plan pays.
- IRA and life insurance beneficiary designations. Life insurance is outside section 5600 entirely, and IRA outcomes are uncertain enough that the form should be changed.
- The will and revocable trust. Section 6122 and section 5600 revoke provisions for a former spouse, but they leave a plan built around a marriage that no longer exists, and they do nothing for a new spouse.
- Powers of attorney and advance health care directives. These frequently name the spouse as agent.
- Account titles and transfer-on-death designations.
When the automatic rules are enough
Worth saying directly: some people are adequately protected by the statutes alone.
A divorced person whose only assets are in a will and a revocable trust, who has no employer retirement plan, no life insurance naming the former spouse, and who has not remarried, is largely covered by sections 6122 and 5600. The former spouse is removed by operation of law and the plan otherwise works.
But that description fits fewer people than you might assume. Most people with an estate worth planning have at least one employer retirement account or life insurance policy, and those are precisely the assets the automatic rules do not reach. The statutes are a backstop for the will. They are not a substitute for reviewing the forms.
Bay Legal reviews and updates estate plans after divorce and remarriage. Reach us at (650) 668-8000, (213) 668-8000, or through baylegal.com/contact-us.
Frequently Asked Questions
Does divorce automatically remove an ex-spouse from a California will or trust?
Largely yes. Probate Code section 6122 revokes gifts to a former spouse in a will, and their nomination as executor or trustee, on a final dissolution or annulment unless the will expressly provides otherwise. Section 5600 applies a similar rule to revocable trusts and most other transfers at death, subject to exceptions.
What are the omitted spouse rules under Probate Code 21610?
A spouse who married the decedent after the will or trust was signed and is not provided for is generally entitled to half the decedent’s community and quasi-community property, and an intestate share of the separate property capped at half. The share is denied if the omission was intentional, the spouse was provided for outside the estate in lieu of a gift, or the spouse validly waived it.
What happens to beneficiary designations that name an ex-spouse?
It depends on the asset. Section 5600 generally revokes payable-on-death and similar designations, but it excludes life insurance, so a former spouse named on a life policy remains the beneficiary until the designation is changed. Employer retirement plans governed by ERISA pay the named beneficiary regardless of state divorce rules.
How do retirement accounts differ from probate assets here?
An employer 401(k) or pension governed by ERISA must pay the beneficiary named in the plan documents; the U.S. Supreme Court held in Egelhoff v. Egelhoff that ERISA preempts state divorce-revocation laws, and in Kennedy that even a waiver in the divorce decree does not change the plan’s duty. An IRA is generally not an ERISA plan, so state law may reach it, but the safe course is to change the form.
What should be updated first after a divorce or remarriage?
Employer retirement plan beneficiary designations first, since neither the decree nor state law will change them. Then IRA and life insurance designations, then the will and revocable trust, then powers of attorney and health care directives, then account titles and transfer-on-death designations.
