If you have an estate plan in place when you divorce, you will likely need to make changes to it. Determining what changes need to be made and when you can make them may be confusing. Some modifications can be made any time. Others need to wait until after the divorce is final. The law may automatically change other elements of your estate plan without you needing to lift a finger.
Estate planning is a lot to think about when you are focused on your divorce and the life changes that it will bring. However, it is wise to determine how your divorce will affect your estate plan sooner rather than later.
What happens to references to your spouse?
You cannot “disinherit” your spouse while you are still legally married unless you have a prenuptial or postnuptial agreement that allows you to. It is important to note that Texas is a community property state, so many of your personal assets may legally belong to both you and your spouse.
When your divorce is final, you do not need to remove your spouse from your will because an ex-spouse is treated the same as a deceased spouse under Texas probate law. Once you divorce, any assets you designated for your spouse will go to any contingent beneficiaries named in your will. The same is true for your spouse’s relatives.
Note that this principle does not pertain to anywhere else your spouse is listed as a beneficiary, such as your retirement accounts, investment accounts or life insurance policy. You will need to make those changes yourself.
What about fiduciary appointments?
The law states that “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.”
Fiduciary appointments include your executor (personal representative), trustees and others you have designated to administer elements of your estate plan. After a divorce, these appointments can also pass to any contingent or alternate fiduciary you named in your will. Typically, fiduciary appointments can be changed any time, regardless of your marital status.
If you choose to continue to have your spouse as your executor or other fiduciary, you will need to restate that in your estate plan after the divorce. The same is true for any inheritances they are named to receive in your estate plan. Provisions in your divorce agreements may require changes to your estate plan as well. It is smart to get estate planning guidance as early as possible in the divorce process so that you can make necessary changes as needed.
