If you’re planning to divorce, or have already begun the process, you likely know that you’ll need to make some changes to your estate plan – whether it’s a simple will or involves multiple documents. You likely are wondering just what changes need to be made – and when you can act.
Every situation is highly unique, so it’s important to have sound estate planning guidance as you divorce. The following are a few common concerns that you may wish to discuss with a skilled legal team before committing to any particular plan of action.
Can you disinherit your spouse? When?
Under Texas law, even if you remove your soon-to-be ex from your estate plan, they would have a right to claim a share of your estate if you passed away while you were still legally married. That’s unless you have a prenuptial or postnuptial agreement that states otherwise. The same goes for beneficiary designations on financial accounts.
When your divorce is final, the state actually disinherits your spouse for you. Under Texas law, an ex-spouse is considered the same as a deceased spouse for inheritance purposes. For example, if you have an alternate beneficiary for any of the assets you leave them, the asset would go to that alternate – unless the alternate is one of their family members (for example, one of your soon-to-be former in-laws).
What changes to estate plans automatically occur when divorce is final?
The law states that “all provisions in (a) 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.” Fiduciary appointments include your executor (personal representative), trustees and powers of attorney (POAs).
With that said, if your spouse is the executor of your estate, or has any other fiduciary appointments in your estate plan, you typically won’t have to wait until the divorce is final to make those changes since those appointments don’t have to go to spouses. You may not want your soon-to-be ex having POA over health care decisions if you’re in a serious car crash before finalizing the divorce, for example.
Finally, since Texas is a community property state, it’s likely that your spouse will end up with some of the assets you jointly own, while you’ll end up with others. That’s just one reason why you’ll need to wait until the divorce and all your agreements are final to make most of your estate plan modifications.