The first item on the post-divorce checklist for ex-spouses should be modifying their wills. Most divorcees will immediately have very different plans for their assets when they die, now that they've gone through such a life-changing event as divorce. According to Texas law, an individual must conform with very stringent guidelines when changing or adding to a will or the court will not enforce the modifications.
When to Modify
It is appropriate to modify a will or trust just before or after a couple divorces. While some states may automatically revoke any gifts in a will that were previously left to an ex-spouse, other states require that a person directly changes their will to remove an ex-spouse as a beneficiary or person with specific authority over medical or legal issues. In general, courts cannot force or prevent people from modifying their wills, but they can enforce statutory guidelines to ensure that changes are done correctly. These rules tend to be strict in Texas.
Texas Guidelines
Texas courts read all provisions in a will that favor a former spouse, either through divorce or annulment, as null and void unless the will gives specific directions to the contrary. This includes any provisions in the will that gift money or possessions or appoint the ex-spouse as having power over the estate or children of the testator. If the will was modified to remove the ex-spouse before the death occurred, the changes must meet the statutory guidelines for proving a will.
The Texas probate statutes indicate that the only way to revoke a will or a particular clause in a will is "by a subsequent will, codicil, or declaration in writing, executed with like formalities, or by the testator destroying or canceling the same, or causing it to be done in his presence." For a court to uphold a new or revised will as valid, it must meet these strict guidelines. For example, if a testator scratches out someone's name on his or her will, Texas courts will not consider these valid modifications and the pre-existing document will likely prevail.
Attorney Advice
Divorces may seem like a final solution to a married relationship, but there may be some lasting effects if a will is not modified before, during or after a divorce. Whether you live in Texas or another state, the best time to contact an estate planning attorney with experience in drafting and revising wills and other estate planning documents is before a divorce is finalized. However, if this is one thing that has to wait, people should make sure to put will modification as the first item on the post-divorce checklist, to ensure that their assets and wishes are carried out in the way they desire if death occurs earlier than expected.
