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How Property Division in an Estate Plan Changes During a Divorce in TX

Blue house with golden coin stacks, male, female and gavel on concrete background. Divorce and property division concept. 3D Rendering.

Many people think of an estate plan as a one-time chore. You get your will or trust set up and then you move on–like buying that nice couch for the living room. Much like that couch, however, after enough time has passed, it may be time to get a new estate plan. If you name your spouse in your will, for example, and then you divorce, does that mean your spouse is still entitled to inherit your assets? What if you planned to change your estate plan to write them out but you don’t get around to it before your passing? Read on to learn about how your estate plan can be affected by your divorce, and call a Houston family law attorney for help with a Harris County divorce.

Without an Estate Plan, Everything Goes to Your Spouse (and Kids)

When someone dies without a will in effect, it’s known as dying intestate. Any property belonging to the estate of the deceased that is not subject to a will or other estate planning instrument such as a trust passes in accordance with Texas intestate law (as opposed to the wishes of the deceased party, which were never codified into a will).

According to Texas law, if you’re married and die intestate, separate property is distributed as follows:

  • One-third goes to your spouse
  • Two-thirds go to your kids
  • If you have no kids, everything goes to your spouse

Community property is distributed as follows:

  • If you have no kids, or you only have kids you share with your spouse, your spouse gets everything
  • If you have kids that are not also children of the surviving spouse, your half of the community property is distributed to your kids and other descendants

If you prefer your property to be distributed differently upon your passing, it’s important to implement an effective estate plan.

What Happens to Your Estate Plan if You Divorce?

A will often dictates that a large portion of the estate (if not the entire estate) will go to the testator’s spouse. If that person is named in the will, however, and the testator dies the day after getting divorced, does the named ex-spouse still inherit everything according to the will?

Texas law, thankfully, recognizes this problem. The law understands that estate plans might not be updated immediately following divorce, given everything else divorce entails, but that most people would prefer to disinherit their former spouse. The law provides that a divorce will automatically affect the interpretation of a will, even if the document has not yet been changed. According to the Estates Code:

“If, after the testator makes a will, the testator’s marriage is dissolved by divorce, annulment, or a declaration that the marriage is void, 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 failed to survive the testator, unless the will expressly provides otherwise.”

Similarly, the Texas Health and Safety Code causes medical powers of attorney to be automatically revoked upon divorce, should a spouse be the designated agent, unless the POA explicitly states otherwise. The Family Code includes similar provisions with regard to retirement benefits and other financial plans that name a spouse as beneficiary.

So, while it’s a good idea to revisit your estate plan soon after your divorce (or even during the divorce, often after reaching settlement with regard to assets and insurance policies), Texas law will cause your will to automatically write out your now ex-spouse unless you explicitly choose otherwise.

Finally, it’s additionally important to make note of assets that pass outside the probate, such as life insurance policies or certain retirement accounts. Basically, policies that have a named beneficiary go to the listed beneficiary without going through probate, and this won’t change unless you change the beneficiary designation on the applicable policies or accounts. For many people, this is as simple as filling out a few forms in your employer’s HR/benefits office, but it’s an important aspect you don’t want to overlook.

If you’re going through a divorce in Texas and want seasoned, savvy advice and representation in protecting your interests, securing favorable asset distribution, resolving a custody dispute, or reaching a divorce settlement, contact the Houston offices of family law attorney Maria Lowry for a consultation on your case.

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