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Why You Need To Update Your Estate Plan If You Get Divorced In Texas

Jan 30, 2024

When you gave your marriage vows, you probably didn’t anticipate your “I do,” would eventually become an “I don’t anymore.” In Texas, roughly a quarter of marriages end in divorce, which is why it’s important to take into account the administrative consequences should you fall into this statistic. Amid the grief and stress that typically accompanies divorce, you are probably not thinking about the ramifications for your estate plan. You’ve already been fighting one legal battle, after all. Do you really want to deal with more paperwork on top of that? 

Attorney Michelle E. Murphy is here to let you know that getting divorced has unavoidable consequences for your estate plan, but the solution doesn’t have to be tedious and painful. In order to ensure that your plans for the future are secured, it’s important to update your estate plan if you get divorced in Texas, as not doing so can have far-reaching consequences for your beneficiaries. Reach out today for quality legal help and peace of mind!

How Does A Divorce Affect Your Estate Plan?

According to Texas Estate Code Section 123.001, when you get a divorce, annulment, or otherwise dissolve your marriage, your will “shall be read as if the former spouse…had failed to survive the testator.” In other words, any provisions in your will having to do with your ex-spouse are automatically revoked, which can have complications, as spouses typically feature prominently in wills and trusts. 

Luckily, effects on your will do not kick in until your divorce is finalized, so you have time throughout the legal process to decide how you will tailor your estate plan to account for this new life change. Here are a few common aspects of your estate plan that will likely need revision due to your divorce: 

  • If you have named your ex-spouse as executor or trustee, you will have to select new appointments to these positions. This measure only applies to a revocable trust; an irrevocable trust will not be altered following divorce proceedings even if your ex-spouse is named as a trustee or beneficiary.
  • If your ex-spouse is listed as a beneficiary, they will be automatically removed except in cases of a pre- or post-nuptial agreement that guarantees them beneficiary status.
  • If you have granted your ex-spouse power of attorney, you will likely want to choose someone new.
  • If your ex-spouse is designated in your living will to make healthcare decisions on your behalf, you will likewise want to choose someone new.
  • Your ex-spouse will no longer be the beneficiary for your life insurance policy. In the event of a divorce, life insurance will be rendered to an alternate beneficiary or, in the absence of one, directly to your estate.
  • Jointly owned assets will need to be reviewed with an experienced estate planning lawyer who can decide how they should be addressed in your revised plan.

If you fail to revise your estate plan after you have divorced your spouse, you run the risk of your wishes going unfulfilled. If important positions remain vacant, such as the executor of your estate, family members can petition for the position or the state of Texas will elect someone.

Can Your Ex-Spouse Still Inherit Your Assets After You Divorce? 

If your divorce from your ex-spouse was amicable, you might still want the original terms of your will to stand. Or, alternatively, perhaps your divorce was tumultuous and you want to make sure your ex won’t be seeing a dime of your inheritance.

Your ex-spouse can still inherit your assets in specific circumstances, such as a statement in your will that designates them as beneficiary even in the event of a divorce. You can also still name them as beneficiary when you revise your will. Finally, a pre-nuptial or post-nuptial agreement can potentially contain a clause that your ex-spouse will remain instated in your will as a beneficiary. 

There is one type of trust that will not be automatically altered in the event of a divorce; if your assets are stored in an irrevocable trust with your spouse named as trustee or beneficiary, the terms will not be changed following your divorce proceedings. In the event you wish to alter or terminate the terms of your irrevocable trust, it’s important to reach out and speak with an experienced estate planning attorney.

How To Update Your Estate Plan After You Divorce

Following your divorce, it’s important to reach out to an experienced estate planning attorney who can help you through the specifics of the process and determine what approach will be best suited to your unique needs. You will be met with two options for updating your will: 

  1. Drafting a new will: If your divorce has made a significant impact on the terms of your will, you and your attorney might determine that drafting an entirely new will is the most suitable solution. In this scenario, your new will needs to unequivocally state that all prior wills are revoked in order to ensure that there can be no challenges to your new terms. Destroying your old will is also a good idea in this scenario.
  2. Writing a codicil: A codicil is a written amendment to your existing will which accounts for any changes you feel are necessary. This document has the same requirements as a will, meaning it has to be witnessed and signed.

If your divorce has impacted your assets, you might also want to speak with your lawyer about updating the terms of any existing trusts.

Trust The Law Office Of Michelle E. Murphy To Update Your Estate Plan And Give You Peace Of Mind

No doubt the emotional turmoil of divorce makes revising your will a daunting process. A compassionate family planning attorney like Michelle E. Murphy can offer you reassurance that your wishes will be accommodated as you enter this new chapter of your life. With over 20 years of experience practicing family law in Texas and helping hundreds of clients with their estate plans, she will take care to tailor your plan to fit your individual needs. Reach out to her today to schedule a free consultation and find out how she can help you smoothly navigate these life changes.