February 28, 2020 | Share
How Does Getting Divorced Impact Your Estate Plan in Texas?
When going through a divorce, in addition to devoting the necessary time and attention to the divorce process, it is also important to consider how your divorce impacts your estate plan. In Texas, getting divorced automatically impacts certain aspects of your estate plan, but not others, and these automatic impacts will not necessarily reflect your final wishes. Here is an introduction to some of the key issues you will need to consider from our McKinney family lawyers:
1. In Texas, Getting Divorced Impacts Your Will (In Most Cases)
Under Texas law, getting divorced has an automatic impact on your will in most cases. Section 123.001(b) of the Texas Estates Code states:
“If, after the testator makes a will, the testator's marriage is dissolved by divorce, annulment, or a declaration that the marriage is void, unless the will expressly provides otherwise . . . all provisions in the will, including all fiduciary appointments, shall be read as if the former spouse and each relative of the former spouse who is not a relative of the testator had failed to survive the testator. . . .”
In other words, unless your will specifies otherwise, when you get divorced your spouse is effectively written out of your will, as are any of his or her relatives who are not also relatives of yours (i.e. family members other than your shared children and their grandchildren).
While this might seem “good enough” if your main concern is ensuring that your spouse does not inherit your property, it can have a number of potentially undesirable effects. Perhaps most significantly, if your will does not name a contingent (or “back up”) beneficiary for your spouse, then your assets will be distributed according to Texas’s law of intestate succession. Additionally, if you do not wish to exclude your spouse’s relatives from your will – for example, if you have grown close to one of his or her children from a prior relationship – then you will need to revise your will accordingly.
2. For Other Estate Planning Tools, the Effect of Your Divorce Can Vary
What about your revocable trust, power of attorney and health care directives? What about your life insurance and retirement accounts? This is where things can get complicated.
Various provisions of Texas law provide for outcomes similar to the effect on your will; however, in some cases, federal laws like ERISA can have a limiting effect. If there is not a law that automatically overrides your estate plan, then any provisions regarding your spouse will remain intact. In any case, in order to ensure that you retain full control over your health care decision-making and the distribution of your estate, you should update your estate plan with the help of an experienced attorney.
Schedule a Free Consultation in McKinney, TX
For more information about the impact of your divorce on your estate plan, schedule a free consultation with one of our experienced family lawyers. Call 214-726-1450 to request an appointment, or send us your contact information and we will be in touch with you soon.
Categories: Family Law & Divorce