If divorce is on the horizon or you’ve already begun the process, it’s understandable that your current estate plan may not be on your mind. However, it at least needs to be on your radar.
If you were forward-thinking enough to put an estate plan in place while you were still relatively young, you know that modifications are often required when changes to your life and family occur. Divorce is certainly one of those.
Some changes involving your spouse can be made before the divorce is final, while others typically need to wait until you’re no longer legally married. Let’s look at some important considerations.
You likely can’t “disinherit” your spouse
Your spouse is probably one of the primary beneficiaries of your assets in your estate plan. Even if you were to remove them, since Texas is a community property state, they would still get approximately half of the marital assets if you died before the divorce was final. That’s unless the two of you have a valid prenuptial or postnuptial agreement where they’ve signed away any right to inheritance.
Once the divorce decree is signed, Texas law states that “all provisions in the will, including all fiduciary appointments, shall be read as if the former spouse…failed to survive the testator.”
That means any assets left to them in your estate plan will go to whomever you’ve listed as a contingent beneficiary. If you choose to still leave your spouse something (or it’s mandated by the divorce agreement), you’ll need to update your estate plan to state that.
What about other places where your spouse is your designated beneficiary?
This applies only to the estate plan documents. If you’ve listed your spouse as a beneficiary of accounts, insurance policies and other assets, the institutions that hold them don’t automatically remove them. You would need to do that.
Texas probate law also treats your spouse (and their relatives) as deceased once the divorce is final if they have any fiduciary responsibilities in your estate plan –like personal representative or health care agent. These designations can typically be changed prior to the divorce decree.