When people are responsible about their estate planning and don’t put it off until they’re well into their senior years or have serious medical issues, they know they will likely need to make some modifications as their lives and their families change. Certainly, divorce is one of those life events that warrants modifications.
If you’ll be divorcing this year, it’s smart to get some sound estate planning guidance as soon as possible to determine what changes you want or need to make and the timing of those changes. Some you can make at any time, while others will need to wait until the divorce is final.
Each person’s situation is unique. However, here are a few questions that most divorcing spouses have about their estate plan.
Can I remove my spouse from my will?
You can’t disinherit your spouse as long as you’re still legally married unless you have a prenuptial or postnuptial agreement with a provision that allows you to. As a community property state, your assets are largely considered to belong to both of you while you’re married.
Can I leave my ex-spouse (and in-laws) in my estate plan as beneficiaries after the divorce?
You can leave assets to an ex-spouse and/or their relatives. However, you’ll need to revise your estate plan after the divorce to do so. Under Texas law, “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.”
What if I no longer want my spouse to be my executor or have power of attorney?
There’s nothing in the law that says your spouse must have any of these administrative authorities. Therefore, you can appoint one or more others before the divorce is final (or at any time) if you choose.
As detailed above, however, once the divorce is final, your spouse and any of their relatives will automatically lose these authorities if you haven’t removed them. That means if you still want your ex-spouse to have POA over your health care, you’ll need to specify that in your estate plan.
There’s a lot more to know about modifying your estate plan and other beneficiary designations during and after divorce. The sooner you seek professional estate planning guidance, the more thoroughly and appropriately you can make the necessary changes.
