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.

Texas State Statutes, Probate Section 69

As with most things in life, their is a time and place for everything.  The process of Estate Planning is the process of planning how your assets will be handled throughout your life and after you pass away.  At times, Estate Planners will recommend placing your assets in vehicles called “non-testamentary assets” or “non-probate assets.”  A non-testamentary asset is an asset which is not disposed of by will.  Texas Probate Code Section 454 speaks to this issue precisely:

Transfers at death resulting from agreements made in accordance with this part of the code are effective by reason of the agreement involved and are not testamentary transfers.  Such transfers are not subject to the provisions of this code applicable to testamentary transfers except as expressly provided otherwise in this code.

Some “non-testamentary” or “non-probate” assets include insurance policies, payable on death accounts, and trust to mention a few.  The Texas Probate Code states non-testamentary assets are controlled by the agreement not the will.

If the asset is not a non-probate asset (forgive me for the double negative) then it is a probate asset.  A probate asset is an asset which a will can dispose of.  In essence, it is all assets which are considered non-testamentary assets.

There are good reasons to “place” assets in non-testamentary “vehicles.”  There are also good reasons not to place them in non-testamentary vehicles.

A valid will can practically dispose of a persons assets just a easily and just as definitively as the agreement related to the non-probate asset.

Instead of thinking of “Probate” as that seven letter word and being a bad thing, one should consider probate as another tool in addressing ones estate.   Over time I will speak to the some of the advantages and the disadvantages.