One of the first questions that many people ask as they proceed toward divorce – particularly if there’s a lot of anger and conflict – is when they can remove their spouse from their will and other estate plan documents.
If that’s your question, the answer isn’t as simple as you might think. Technically, Texas residents can remove their spouse as a beneficiary any time – even if they aren’t divorcing.
Even if you did that, however, if you were to pass away before the divorce is final, your spouse would still be able to claim approximately half your assets since Texas is a community property state. An exception would be if they gave up their inheritance rights in a prenuptial or postnuptial agreement (and that agreement held up in court).
What does Texas law say?
Once the divorce decree is issued, state laws automatically remove the former spouse as a beneficiary of the estate plan. Specifically, it 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 if they’re also your executor, health care agent or have any other fiduciary responsibilities, those will pass to whomever you named as an alternate (although you can likely make fiduciary changes prior to the divorce being final).
Note that if you want your spouse to continue to be a beneficiary and/or fiduciary or you’re required to under the terms of your divorce, you need to specify that in your estate plan.
Other beneficiary designations
You have likely designated your spouse as a beneficiary of your retirement and other investment accounts, as well as insurance policies. These aren’t subject to the same laws. That means you would need to notify the party that holds those assets if you want to change the beneficiary.
It’s a lot to consider when you may already feel overwhelmed with the stress and consequences of the divorce. That’s why it’s wise to consult with an experienced estate planning professional as early as possible as you proceed toward divorce, as well as throughout the process and after the divorce is final. This can help you ensure that your intentions are properly codified and that there are no gaps in your estate plan.