Most people’s estate plans include their spouse in a multitude of ways: from inheritances to fiduciary responsibilities. If you are a forward thinker with an estate plan in place and you are considering divorce, it is important to not ignore the changes divorce may bring to your plan.
Since everyone’s estate plan is unique, it is important to have individualized guidance as you review and modify yours. It is important for your financial future and peace of mind to know how divorce will affect your plan.
How the law “disinherits” an ex-spouse
Under Texas law, you cannot completely disinherit someone to whom you are still legally married unless you have a prenuptial or postnuptial agreement in which they have waived their inheritance rights. That means that until the divorce decree is final, your spouse may still be able to claim part of your estate if you pass away. It is important to note that Texas is a “community property” state.
Once your divorce is final, the law automatically removes your ex-spouse (and their side of the family) from your estate plan, same as if they had died. 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.”
Changes you will likely need to make
The aforementioned law provision means that if you don’t have alternates named as beneficiaries or for fiduciary appointments (like executor, trustees and powers of attorney), you will need to name other people to replace your ex-spouse. You can typically change the fiduciary appointments at any time since they do not have to be your spouse or a relative.
Note that if you have listed your spouse or in-laws as beneficiaries in other locations, such as investment or retirement accounts, the law does not remove them. You need to do that yourself, if you choose to.
The terms of your divorce may dictate some changes to your estate plan as well. It is wise to do a final review of your plan after the divorce is final to ensure that it reflects your current wishes and assets.
Estate planning is a lot to think about when going through a divorce, as you are likely already overwhelmed. Having sound estate planning guidance can help ensure that nothing is overlooked.