How Does Divorcing Your Spouse Affect Your Will?

Many married couples sign Wills that leave some or all of their estate to their spouse, but sometimes circumstances change and the couple dissolves the marriage by divorce. As a result, the estate plan that the former couple once had may no longer reflect their wishes of how their estate should be divided after they pass away, leaving the couple to wonder “How does my divorce affect my Will?”

If one signed a Will while he or she was married and then subsequently divorces that spouse, the Will is not automatically invalidated or revoked. However, all provisions in the Will are read as if the former spouse had died before the testator (the spouse who made the Will), per Texas Estates Code Section 123.001. This also applies to each relative of the former spouse who is not a relative of the testator, namely stepchildren. For example, a husband‘s Will, which he executed when he was married, leaves his entire estate to his now-ex-wife. The Will further provides that if the wife dies before the husband, then his entire estate would instead go to his children and stepchildren. If we treat the now-ex-wife and now-former stepchildren as having died before the husband, the husband’s children will be the only remaining beneficiaries and inherit the entire estate.

While the Will is an important document in a comprehensive estate plan, it is often only a piece of the puzzle in directing the passage of one’s wealth after death. Many people own “non-probate assets,” which pass to named beneficiaries outside of the terms of the Will and the probate estate. The most common examples of non-probate assets that may have a beneficiary designation are life insurance policies, retirement accounts, and bank accounts. If, during the marriage, a now-former spouse was listed as the primary beneficiary on a life insurance policy, retirement account, or bank account, that beneficiary provision is no longer effective and the policy or account will pass to the next-named contingent beneficiaries. If no other beneficiary is designated on the policy or account, those funds are payable to the holder’s probate estate.

Even filing for divorce can have an effect on one’s Will and estate plan. Before a final decree for divorce is signed, the court can sign temporary orders that restrict how either spouse may dispose of community property. The court can prevent either spouse from changing their Will or modifying beneficiaries on policies and accounts until a final decree for divorce is entered.

In addition to the transfer of assets after one’s death, an estate plan will usually include provisions for making one’s financial and medical decisions in the event that one becomes incapacitated, typically through a statutory durable power of attorney or a medical power of attorney. If, during the marriage, a now-former spouse was appointed as an agent of the other former spouse under either document, the appointment is automatically revoked. If appropriate, alternate agents named in the documents may take over responsibilities.

While these rules give effect to how most people would like their estate plan to change after a divorce, you should consult with an estate planning attorney to make sure your estate plan is still right for you.

Nothing contained in this publication should be considered as the rendering of legal advice to any person’s specific case but should be considered general information.