The case of Estate of John R. Harmon (A069050, 95 CDOS 8668, filed 11/9/95), states that Mr. Harmon prepared a will in 1974 leaving his property to his wife or, if she failed to survive him, then to "my issue and my spouse's issue." In 1986, Mr. and Mrs. Harmon divorced. Mr. Harmon never updated his will before his death in 1993.
Mrs. Harmon received nothing under the will because of a special law (Probate Code Section 6122), which provides that any bequest to a spouse is automatically revoked upon divorce. Mr. Harmon's son claimed that Mrs. Harmon's children should also receive nothing, either because the term "my spouse's issue" meant nothing after the divorce, or because Probate Code Section 6122 should be interpreted to exclude the ex-stepchildren. (Probate Code Section 6122 applies only to divorces after December 31, 1984.)
At trial, Sonoma County Superior Court Judge Lloyd van der Mehden ruled that the "ex-stepchildren" were entitled to share in the estate. He concluded that Probate Code Section 6122 did not apply to anyone other than a spouse.
The First District Court of Appeals reversed the trial judge's ruling, writing that "We think it is a more logical construction to hold that when a testator provides for his spouse's children, he normally intends to exclude children of an ex-spouse after dissolution, unless a contrary intention is indicated elsewhere in his will." Although Mr. Harmon had specifically identified his ex-spouse's children by name at the beginning of his will, the Court of Appeals did not believe that he intended for them to receive property after his divorce.
I am concerned that the Court of Appeals' analysis would seem to disinherit the ex-spouse's children even if they were specifically named in the bequest, instead of being referred to as "my spouse's children." Many stepparents develop close bonds that continue after divorce.
In addition, the appellate court noted that the Uniform Probate Code provision on which Probate Code 6122 was based was amended after California adopted it, to provide for automatic disinheritance of all relatives of an ex-spouse. This appears to improperly overrule the California legislature's decision (so far) not to adopt that change. For this reason, it is possible that the California Supreme Court will decide to review this case, or to "depublish" the appellate court's opinion (thus barring other courts and attorneys from citing the case).
In any event, there is a simple solution to this entire problem: Update your estate plan after divorce. This could be as simple as executing a new will with identical or updated provisions, or preparing a codicil that expressly confirms the continuing effect of prior bequests despite the divorce. Because of the risk of later disputes, these documents should be prepared or reviewed by your attorney.
Even if your will doesn't need updating, other documents do. For example, if Mr. Harmon had also failed to update life insurance and retirement plan beneficiary designations, his ex-wife would receive those benefits, because Probate Code Section 6122 applies only to wills. (The Harmon case doesn't discuss this issue.)
Many people delay any estate planning after divorce. But some of the most painful cases I have handled involve disputes over benefits between ex-spouses and children. In some of these cases, the disputes tear apart family relationships that had healed after the divorce.
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