Divorce and your Last Will and Testament
A divorce will likely impact a person’s life in many respects. One respect that is often overlooked is that Last Will and Testament and beneficiaries under various types of non-probate assets.
Think back to the time you and your now ex-spouse went to the family lawyer. The two of you decided to give each other everything in case one of you died. Now the two of you have divorced. If you pass away without changing your will, does the divorce impact the provisions in the will? Well, the Texas Legislature has made a default rule for you. If after making a will you get divorced and pass away, the Texas courts will treat your ex-spouse as if she had predeceased you. In other words, your ex-spouse will not take under the will. In 2007 the Texas Legislature amended the statute to also include relatives of the ex-spouse who are not related to the testator (the person who wrote the will and died).
Take note: This is the Texas rule. There have been exceptions made and should be considered. One clear exception is in certain Federal ERISA plans. Since it falls under federal laws, the federal laws apply and the divorce does not ‘nullify’ the beneficiary. In other words, if your ex-spouse is the name on that beneficiary card he/she may take those benefits despite your divorce.
Why leave all these questions up in the air? There is an easy solution — change your beneficiaries and update your will when major changes occur in your life. And yes, a divorce would qualify as a major change in your life.
Texas Probate Code Section 69
Sec. 69. WILL PROVISIONS MADE BEFORE DISSOLUTION OF MARRIAGE. (a) In this section, “relative” means an individual who is related to another individual by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, respectively.
(b) If, after making a will, the testator’s marriage is dissolved, whether 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.
(c) A person whose marriage to the decedent has been dissolved, whether by divorce, annulment, or a declaration that the marriage is void, is not a surviving spouse unless, by virtue of a subsequent marriage, the person is married to the decedent at the time of death and the subsequent marriage is not declared void under Section 47A of this code.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 1746, ch. 713, Sec. 12, eff. Aug. 27, 1979; Acts 1995, 74th Leg., ch. 642, Sec. 2, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1302, Sec. 5, eff. Sept. 1, 1997.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 4.02, eff. September 1, 2007.
