Does Divorce Revoke a Will or Trust in California?

Q: My ex is still the beneficiary on my 401(k). Does the divorce cancel that?

No. Under Egelhoff v. Egelhoff, federal ERISA law preempts California’s revocation-on-divorce statute for employer retirement plans. The plan pays whoever is named on the form. Submitting a new beneficiary form with your plan administrator is the only fix, and it takes about ten minutes.

Short answer: A final divorce — the judgment of dissolution, not a separation — automatically cancels everything in your will that favored your ex under Probate Code §6122, and most revocable transfer-on-death arrangements naming your ex fail under §5040. But two big holes remain: life insurance and 401(k)s are NOT covered, so you have to update those forms yourself. And while the divorce is still pending, family-law restraining orders limit what you’re allowed to change. The rules are different in each phase, and mixing them up is where people get hurt.

Figures and code sections verified against the California Probate Code, Family Code §2040 (as amended 2025), and Egelhoff v. Egelhoff (2001) 532 U.S. 141, 2026. This is general information, not legal advice for your situation.

Say you’re mid-divorce in Ventura County. The house in Camarillo is community property, your spouse is still the beneficiary on your life insurance, and your five-year-old will names them as executor and leaves them everything. What can you change today, what changes by itself later, and what stays stuck until you fix it? Here’s the timeline.

Phase 1: While the divorce is pending — the rules most people never hear about

The moment a California divorce petition is filed and served, automatic temporary restraining orders — ATROs — snap into place under Family Code §2040 and bind both spouses. During this window:

You CAN change your will — freely and unilaterally. Section 2040(b)(1) expressly lets you make, change, or revoke a will without telling anyone. If your current will leaves everything to the spouse you’re divorcing, you can sign a new one tomorrow. Most people going through a divorce should.
You CAN create a new trust — but you can’t fund it. Signing an unfunded trust is permitted. Moving assets into it is not.
You CAN revoke a revocable trust or sever a joint tenancy — but only after filing and serving notice on the other spouse first, under §2040(b). It’s allowed, just not secretly.
You CANNOT change life insurance beneficiaries or create and fund new nonprobate transfers. Sections 2040(a)(3)-(4) restrain those until the judgment or a court order says otherwise.

This is the part generic articles skip. People assume they can change nothing (wrong — the will is fair game) or everything (also wrong — swap that insurance beneficiary mid-case and you’ve violated a court order). If you die mid-divorce with old documents in place, your soon-to-be-ex is still your spouse and still your beneficiary. That’s why the will update matters right away.

Phase 2: After the judgment — what the law fixes for you

Once the court enters the judgment of dissolution, two statutes do cleanup automatically:

Probate Code §6122 revokes every will provision that favored your ex — gifts, the executor nomination, powers of appointment. The law treats your former spouse as if they died before you. Important: this is triggered by dissolution or annulment, not by separation. Separated for ten years but never divorced? Your estranged spouse still takes under your will.
Probate Code §5040 does the same for most revocable nonprobate transfers naming your ex — think pay-on-death designations and revocable transfer-on-death arrangements. Again: a judgment of legal separation doesn’t count. Only dissolution does.

Sounds like the law has your back. Here’s where it doesn’t:

Life insurance is excluded from §5040. If your ex is still the named beneficiary on your policy after the divorce, your ex collects. The statute deliberately leaves insurance alone.
ERISA retirement plans — 401(k)s, pensions — ignore California law entirely. The U.S. Supreme Court held in Egelhoff v. Egelhoff (2001) 532 U.S. 141 that federal law preempts state revocation-on-divorce statutes. The plan administrator pays whoever is on the beneficiary form, period. If that’s your ex-spouse from 2009, that’s who gets the money.

So the automatic fixes are real but partial. They’re a safety net with two large holes cut in exactly the places where most people keep their biggest assets.

Phase 3: What to affirmatively update once the divorce is final

Don’t rely on the statutes. Do the sweep yourself, in roughly this order:

401(k), pension, and IRA beneficiary forms. First, because federal preemption means nothing else protects you here.
Life insurance beneficiaries. Second, because §5040 excludes them.
A new will and, usually, a new or restated trust. Yes, §6122 blanks out the ex — but it leaves you with a document full of holes rather than a plan. Who’s your executor now? Who gets the Camarillo house? A fresh document answers that; a statutorily edited one doesn’t. If you and your ex had a joint trust, it needs real attention, not a patch — see how a trust amendment compares to a full restatement.
Powers of attorney and your advance health care directive. Most married people named each other. You probably don’t want your ex authorizing your surgery.
Pay-on-death and transfer-on-death designations. Section 5040 catches most of these, but banks pay off their own paperwork, and cleaning up the forms beats making your family litigate the statute. Here’s why beneficiary designations beat your will every time they conflict.

One honest note: dividing the assets themselves — who keeps the house, how the pension splits — is your family lawyer’s job, not ours. Eric handles the estate-plan rebuild after the dust settles. If you need a family law referral, he’ll make one for free.

Questions people actually ask

Does a legal separation revoke my will in California?

No. Both Probate Code §6122 and §5040 are triggered only by a judgment of dissolution or annulment. A judgment of legal separation — or just living apart, for any number of years — changes nothing. If you’re separated and don’t want your spouse inheriting, you need to sign a new will yourself.

Can I change my will during my divorce?

Yes, completely and without notice to anyone. Family Code §2040(b)(1) specifically exempts making, changing, or revoking a will from the automatic restraining orders. It’s one of the few estate-planning moves you’re fully free to make while the case is pending, and for most people it’s the most urgent one.

Can I take my spouse off my life insurance while the divorce is pending?

No. Changing insurance beneficiaries is restrained by the ATROs under Family Code §2040(a)(3) unless the other side consents in writing or the court orders it. Wait for the judgment — then change it immediately, because §5040 won’t do it for you afterward either.

My ex is still the beneficiary on my 401(k). Does the divorce cancel that?

No. Under Egelhoff v. Egelhoff, federal ERISA law preempts California’s revocation-on-divorce statute for employer retirement plans. The plan pays whoever is named on the form. Submitting a new beneficiary form with your plan administrator is the only fix, and it takes about ten minutes.

Can I revoke our joint living trust during the divorce?

Usually yes, but not quietly. Family Code §2040(b) lets you revoke a revocable trust only after you file notice of the change with the court and serve it on your spouse. Creating a brand-new unfunded trust needs no notice at all — funding it is what has to wait.

What happens if I die before the divorce is final?

You die married. Your spouse inherits under your existing will and beneficiary designations, plus whatever community property and spousal rights the law gives them. Section 6122 never triggers because there was no dissolution. This is exactly why updating your will on day one of the case — the thing the ATROs let you do — is worth doing.

The bottom line

Divorce cleans up part of your estate plan automatically — will provisions under §6122, most pay-on-death arrangements under §5040 — but it deliberately skips life insurance and can’t touch federal retirement plans. Meanwhile, during the case itself, the §2040 restraining orders leave your will fully in your control while freezing your beneficiary forms. Know which phase you’re in, change what you’re allowed to change now, and sweep the rest the week the judgment comes in. If your divorce just finished and your plan is a mess of crossed-out names, talk to Eric — rebuilding it is usually simpler than you’d think.

Sources: Cal. Prob. Code §6122; Cal. Prob. Code §5040; Cal. Fam. Code §2040 (as amended 2025), subds. (a)(3)-(4), (b), (b)(1); Egelhoff v. Egelhoff (2001) 532 U.S. 141.