What ending your marriage means for your estate plan

If you already have an estate plan in place as you prepare to divorce, you’re ahead of most people. Divorce, however, is one of those life changes that will likely inspire multiple modifications to your estate plan documents. It’s smart to have estate planning guidance as early as possible if you are moving toward ending your marriage. Some changes can be made at any time. Others will need to wait until the divorce is final.

Among the most significant issues for many people involves if and when they can “disinherit” their spouse. Most of the time, the only way you can prevent your spouse from inheriting any of your assets prior to the final divorce decree is if you have a prenuptial or postnuptial agreement that says you can. Otherwise, they’re entitled to a share of them for as long as you’re legally married. Since Texas is a community property state, most of your assets likely belong to both of you anyway.

What happens when the divorce is final?

Once the divorce is final, you won’t have to actually “disinherit” your ex. The law will broadly do it for you. Texas probate law treats a former spouse like one who’s deceased. The same is true for your in-laws. It states that “all provisions in (a) 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.” This applies to other places where you may have designated your spouse as a beneficiary – such as retirement and investment accounts.

Of course, your divorce agreements will cover your divisions of these assets. However, your ex will no longer be a beneficiary of your estate plan (unless you choose to continue to designate them as a beneficiary or are required to do so as part of your divorce agreement – you can seek legal guidance about how to accomplish this aim). For example, if you’re ordered to pay spousal and/or child support, you may be required to have a life insurance policy with your ex as the beneficiary.

Note that all of this goes for you if your spouse has an estate plan. That’s why it’s a good idea to know what changes they’re making in their plan. Inheritances are just one consideration. There are executor, health care agent, trustee and other appointments to consider as well, legal guardianships and possibly more. As noted, it’s wise to have professional estate planning guidance available during and after your divorce, given the complexity of the situation and all that is at stake.