You are on page 1of 7



Bradrord Baugh*
Leah Moslehi Amini

Re: Marriage of


The purpose of this letter is to encourage you to consider your estate planning
and testamentary goals in light of your divorce. If you decide you want to make
changes to your estate plans, or create an estate plan for the first time, it is important to
work closely with family law and estate planning counsel to effectuate your
testamentary goals without violating the Automatic Temporary Restraining Orders
("ATROs")set forth in Family Code section 2040. The ATROs are contained on the
second page of the Summons. I enclose a copy for your reference.

The ATROs are effective the moment you file for divorce - or the moment you
are served by your spouse - and remain in place until all issues in your case are
resolved. The ATROs govern what changes you may make to your estate plans
unilaterally, what changes require notice to your spouse, what changes require the
consent of your spouse, and what changes can be made only with a court order.

Changes vou may make to vour estate plan.

A primary purpose of the ATROs is to maintain the status quo for the protection
of vulnerable parties and children while the division of marital assets is in progress.
Among other things, this means maintaining health and life insurance beneficiary
designations, revoking existing trusts (and severing existing joint tenancies) only after
notice is served upon the other party, and prohibiting assets from being transferred to
trustees of new trusts (who might not be subject to court jurisdiction) except with the
express consent of the other party or order of the court.

♦Certified Family Law Specialist
1550 The Alameda
Suite 155
San Jose, California 95126-2304 FAX: (408) 280-5748
Telephone: (408)287-7790 email;
Page 2

The following chart summarizes how you can change your estate plan during
your divorce proceedings:

Estate Planning Road Map Pending Divorce
1. What can 1 do unilaterally?
a. Create, modify or revoke a Will. PC 2040(b)(1)
b. Create but not fund a new one-trustor revocable or PC 2040(b)(4)
irrevocable trust. PC 2040(a)(2)
2. What changes can 1 make with notice to my spouse?
a. Revoke a revocable trust. Notice must be filed and PC 2040(b)(2)
served on the party before the change takes effect. and
Follow terms of trust exactly. PC 2040(d)(1)
b. Revoke the transfer to the beneficiary of a "non-probate PC 2040(b)(2)
transfer." Notice must be filed and served before the and
changes take effect. A "non-probate transfer" includes, PC 2040(d)(1)
but is not limited to, pension plans, employee benefit
plans, individual retirement accounts and life insurance.^
(Note: you can only revoke life insurance if child support
or spousal support is not at issue pursuant to PC
2040(a)(3). (d)(3)
c. Eliminate a right of survivorship for property (joint tenancy PC 2040(b)(3)
or community property with right of survivorship). Notice and
must be filed and served on the other party before the PC 2040(d)(1)
change takes effect.
3. What changes can 1 make only with my spouse's consent
or a court order?

a. Create or modify a "non-probate transfer." A "non- PC 2040(a)(4)
probate transfer" includes, but is not limited to, revocable PC 2040(d)(1)
trusts, pension plans, employment benefit plans, and
individual retirement accounts and life insurance. PC 5000

"■simply revoking the existing beneficiary designation with notice will not be effective as to ERISA-
governed employee benefit plans, including 401 (k) and pensions. A revocation of the beneficiary of an
ERISA-governed plan can only be made by obtaining the spouse's voluntary, Informed, written and
notarized consent as provided under the terms of the Plan. A revocation by court order would probably
not be available as to retirement assets because to be effective It would have to be a Qualified Domestic
Relations Order (QDRO).
Page 3

b. Fund a new revocable or irrevocable trust. FC 2040(a)(2)
FC 2040(a)(4)
4. What changes can 1 make only with a court order?
a. Cashing, borrowing against, cancelling transferring, FC 2040(a)(3)
disposing of, or changing the beneficiaries on life, health,
automobile, and disability insurance which child or
spousal support is at issue.

b. Funding or creating a non-probate transfer if the other FC 2040(a)(4)
spouse does not consent. and
FC 2040

It is also important to understand what would happen to your estate if you were
to die during your divorce without making any changes to your estate plans. The
answer to this question depends on whether you die before entry of Judgment
terminating your marital status or after Judgment terminating your marital status.

(a) Death before entry of Judgment terminating vour marital status.

If you were to die before entry of a Status-Only Judgment, the Family Law court
loses jurisdiction over all issues, except those already adjudicated. Under these
circumstances, your share of the community property and all of your separate property
would pass as if the Petition - Marriage had not been filed. Thus, your assets would
pass to the beneficiaries of your current estate plan, which is commonly the surviving
spouse. If you do not have an estate plan, your estate would pass through probate and
your spouse would receive your share of the community property and all of your
separate property. Any non-probate assets, such as the retirement assets and life
insurance plans would pass to your designated beneficiaries. All property held in joint
tenancy passes to the survivor, regardless of your will. It is important to establish what
property is held in joint tenancy, and sever all joint tenancies, now.

(b) Death after Judgment terminating marital status.

If you were to die after a Status-Only Judgment that expressly reserves
jurisdiction over the remaining issues in this case, the result is completely different. In
this scenario, the Family Law Court retains jurisdiction and can continue with the
divorce. The Executor of your Will would be substituted in for you, and the Family Law
Court would retain jurisdiction to decide the remaining issues in the case.

Death after a Status-Only Judgment also has a very different impact on how
one's estate would be distributed. A Judgment of Dissolution automatically terminates
Page 4

non-probate transfers between former spouses, including wills, trusts, and beneficiary
rights under retirement plans. It also terminates the right of survivorship interest in joint
tenancies and community property with right of survivorship. Unless the respective wills
otherwise provide, the Judgment also revokes all testamentary transfers between
former spouses and any provision In a will nominating the former spouse either as
trustee, conservator, or guardian. A Judgment of Dissolution, however, does not
terminate the surviving spouse's rights as a designated beneficiary under the other
spouse's life insurance policy.

The purpose of this letter is to highlight the crossover importance of estate
planning during and after your divorce. Please contact me so we can discuss how the
estate planning Issues specifically govern your case and/or your planning course. You
will need to get an estate planning attorney, however, as we do not provide that service.

Please do not hesitate to contact me if you have any questions. I look forward to
hearing from you.

Very truly yours.


aa Estate form Itr.wpd

When I'm in court, I only have one thing to focus on. Otherwise, between 9 and
5, thanks to the magic of technology, I'm not given enough time to think. Most of the
work that was of long term planning and of serious value is done before 9 a.m. or after
5 p.m. or on the weekend. See attached excerpt from The Organized Mind.

Today's selection — from The OrgcmizedMindby Daniel J. Levitin. Focus facilitates
creativity and problem-solving, but the ability to focus is impeded by any number of
things, including multi-tasking. And we are all easily distracted, because we love new
things ~ in fact, we humans will work just as hard to obtain a novel experience as we
will to get a meal or a mate:

"The brain 'only takes in the world little bits and chunks at a time,' says MIT
neuroscientist Earl Miller. You may think you have a seamless thread of data coming in
about the things going on around you, but the reality is your brain 'picks and chooses
and anticipates what it thinks is going to be important, what you should pay attention to.'

"[There are] metabolic costs [for] multitasking, such as reading e-mail and talking on
the phone at the same time, or social networking while reading a book. It takes more
energy to shift your attention from task to task. It takes less energy to focus. That means
that people who organize their time in a way that allows them to focus are not only
going to get more done, but they'll be less tired and less neurochemically depleted after
doing it. Daydreaming also takes less energy than multitasking. And the natural intuitive
see-saw between focusing and daydreaming helps to recalibrate and restore the brain.
Multitasking does not.

"Perhaps most important, multitasking by definition disrupts the kind of sustained
thought usually necessary for problem solving and for creativity. Gloria Mark, professor
of informatics at UC Irvine, explains that multitasking is bad for innovation.'Ten and a
half minutes on one project,' she says, 'is not enough time to'think in-depth about
an3l:hing.' Creative solutions often arise from allowing a sequence of altercations
between dedicated focus and daydreaming.

"Further complicating things is that the brain's arousal system has a novelty bias,
meaning that its attention can be hijacked easily by something new ~ the proverbial
shiny objects we use to entice infants, puppies, and cats. And this novelty bias is more
powerful than some ofour deepest survival drives: Humans will work just as hard to
obtain a novel experience as we will to get a meal or a mate. The difficulty here for
those of us who are trying to focus amid competing activities is clear: The very brain
region we need to rely on for staying on task is easily distracted by shiny new objects. In
multitasking, we unknowingly enter an addiction loop as the brain's-novelty centers
become rewarded for processing shiny new stimuli, to the detriment of our prefrontal
cortex, which wants to stay on task and gain the rewards ofsustained effort and
attention. We need to train ourselves to go for the long reward, and forgo the short one.
Don't forget that the awareness ofan unread e-mail sitting in your inbox can effectively
reduce your IQ by IG points,'and that multitasking causes information you want to le^n
to be directed.tqfhe wrong part ofthe brain." t • -

The below information was sent out in a daily newsletter from
Delancy Place. It applies to me.

Email is the kudzu of communication. I try the best I can to
ignore it except for once a day if I'm not in trial when I try
to ignore it complete.

This observation is in addition to the fact email is not very secure.
Make sure you change your passwords or set up a new email
account with a brand new service to take some minimal steps to
insure your spouse is not reading your email.

In today's selection ~ you can't do two things that require concentration at once ~ or at
least you can't do them very well. And doing too much,even if not all at once, has a
debilitating effect:

"The idea that conscious processes need to be done one at a lime has been studied in
hundreds of experiments since the 1980s. For example, the scientist Harold Pashler
showed that when people do two cognitive tasks at once,their cognitive capacity can
drop from that of a Harvard MBA to that of an eight-year-old. It's a phenomenon called
dual-task interference. In one experiment, Pashler had volunteers press one oftwo
keys on a pad in response to whether a light flashed on the left or right side ofa
window. One group only did this task over and over. Another group had to define the
color of an object at the same time, choosing from among three colors. These are
simple variables: left or right, and only three colors. Yet doing two tasks took twice as
long, leading to no time saving. This finding held up whether the experiment involved
sight or sound, and no matter how much participants practiced. If it didn't matter
whether they got the answers right, they could go faster. The lesson is clear; if
accuracy is important, don't divide your attention.

"Another experiment had volunteers rapidly pressing one oftwo foot pedals to
represent when a high or low tone sounded. This exercise took a lot of attention. When
researchers added one more physical task, such as putting a washer on a screw, people
could still do it, sort of, with around a 20 percent decrease in performance. Yet when
they added a simple mental task to the foot-pedal exercise, such as adding up just two
single-digit numbers,(a simple 5 + 3 = ), performance fell 50 percent. This experiment
revealed that the problem isn't doing two things at once so much as doing two
conscious mental tasks at once, unless you are okay with a significant drop in

"Despite thirty years of consistent fmdings about dual-task interference, many people
still try to do several things at once. Workers ofthe world have been told to multitask
for years. Linda Stone, a former VP at Microsoft, coined the term continuous partial
attention in 1998. It's what happens when people's focus is split, continuously. The
effect is constant and intense mental exhaustion. As Stone explains it,'To pay
continuous partial attention is to keep a top-level item in focus, and constantly scan the
periphery in case something more important emerges.'

"A study done at the University of London found that constant emailing and text-
messaging reduces mental capability by an average often points on an IQ test It was
five points for women,and fifteen points for men. This effect is similar to missing a
night's sleep. For men,it's around three times more than the effect of smoking
cannabis. While this fact might make an interesting dinner party topic, it's really not
rhat amusing that one ofthe most common 'productivity tools' can make one as dumb
as a stoner.(Apologies to technology manufacturers: there are good ways to use this
teclmology, specifically being able to 'switch off for hours at a time.)'Always on' may
not be the most productive way to work. One ofthe reasons for this will become
clearer in the chapter on staying cool under pressure; however, in summary,the brain
is being forced to be on 'alert' far too much. This increases what is known as your
allostatic load, which is a reading of stress hormones and other factors relating to a
sense of threat. The wear and tear from this has an impact. As Stone says,'Tliis always
on, anywhere, anytime, anyplace era has created an artificial sense of constant crisis.
What happens to mammals in a state of constant crisis is the adrenalized fight-or-flight
mechanism kicks in. It's great when tigers are chasing us. How many ofthose five
hundred emails a day is a tiger?'"

Author: David Rock
Title: Your Brain at Work
Publisher: Harper Business
Date: Copyright 2009 by David Rock