When people are going through a divorce, they often don’t give a lot of thought to the changes they’ll need to make to their will and other estate plan documents. The last thing they want to do is deal with more legal matters. Modifying their estate plan is often something they push off until “later.”
If someone passes away after the divorce is final and before they’ve made the necessary updates to their plan, however, things can get rather messy for the family they leave behind. Further, important changes they may have intended to make won’t be carried out (or may even remain unknown).
State probate laws handle divorce differently. Here we’ll discuss a few pertinent issues and what happens under Texas law if an estate plan isn’t modified when the divorce is final.
What happens to the now-former spouse’s inheritance?
In Texas, a person can’t typically disinherit their spouse while still legally married. Once the divorce is final, the law disinherits them. It also removes them from any administrative roles they may have, like executor (personal representative). Specifically, the law states that “all provisions in the 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….”
That means if the deceased didn’t have alternate (contingent) beneficiaries listed, the inheritances could be distributed as though they died “intestate” (without a will). That means disbursing them based on how close the familial relationship was, regardless of the actual relationship (or lack of) was or whether the beneficiary can responsibly handle the inheritance.
What about fiduciary responsibilities?
Further, if the deceased didn’t designate contingent administrators, a probate judge could make those appointments. Unless family members choose to make their case to the court about who is best suited for these roles, the appointments may not be the best choices. Either way, they may not be the people the deceased intended to choose. All of this can cause serious family conflict (not to mention costing the family time and money if they go to court).
These are among the reasons why Texans need to be looking at their estate plan as they divorce and not delay in making the appropriate changes. If you’re already dealing with the estate of a loved one who didn’t do this, it can be helpful to have sound legal guidance.