Updating Your Will and Estate Plan After Divorce in Texas

Should I update my will after getting divorced?

Yes. Texas law cleans up part of an old will automatically, but not enough to leave it as it is. Under Texas Estates Code § 123.001, when a marriage ends by divorce or annulment, the will is read as if the former spouse, and the former spouse's relatives who are not your relatives, died before you. That covers gifts to them and their appointment as executor, trustee or guardian, unless the will expressly says otherwise.

That rule removes your ex-spouse, but it does not put anyone in their place. If your old will left everything to your spouse with nothing for a backup, the property may pass as if you had no will. If your ex-spouse was named executor and you named no alternate, the court will have to choose one.

A divorce is also the moment many parents want to name a guardian for their children, set up a trust so an ex-spouse does not control the children's inheritance, and choose new agents. A new will is the clean way to do all of that.

Can I remove my ex-spouse from my estate planning documents?

Yes, and Texas removes them from several documents automatically, but you should still replace those documents. The automatic rules are:

• Will: provisions for the former spouse and their relatives are read as if they died first (Texas Estates Code § 123.001).
• Revocable trust: gifts to the former spouse and their appointment as trustee or agent are revoked, unless a court order, the trust or a property agreement says otherwise (§ 123.052).
• Durable power of attorney: a spouse-agent's authority ends with the divorce, unless the document says otherwise (§ 751.132).
• Medical power of attorney: the same rule applies under Texas Health and Safety Code § 166.155.

Life insurance, retirement and other beneficiary designations are governed by Texas Family Code §§ 9.301 and 9.302, which have their own conditions and exceptions, and some plans follow federal rules. Update every form directly with the company. If your divorce decree requires you to keep your ex-spouse or the children as beneficiary, for example to secure child support, follow the decree.

Should I update my power of attorney after divorce?

Yes. Divorce ends your ex-spouse's authority as agent under a durable power of attorney and a medical power of attorney, unless the document says otherwise. But a bank or hospital may not know about the divorce, and if your ex-spouse was your only agent, you now have no agent at all.

Signing new documents solves both problems. Name a new agent and a backup, sign a new HIPAA authorization so the right people can talk to your doctors, and review your directive to physicians. Give copies to your new agents and your doctors, and let the people holding the old documents know they are revoked.

Can I name a guardian for my children in my will?

Yes. Under Texas Estates Code § 1104.053, a surviving parent may name a guardian of the person for minor children by will or written declaration, and the court must appoint that person unless they are disqualified, deceased, unwilling to serve or not in the children's best interest.

After a divorce, the other parent usually continues raising the children if you die, as long as that parent is alive and has parental rights. Your choice of guardian matters if you become the surviving parent. You can also choose who manages your children's inheritance, through a trustee, so that money you leave is not controlled by an ex-spouse. See child custody for how Texas decides conservatorship between living parents.

How do I protect my children's inheritance after remarriage?

With a written plan, because the default rules may not do what you expect. If you die without a will and have a child from an earlier relationship, your half of the community property goes to your children, but your new spouse still receives a share of your separate property under Texas Estates Code § 201.002. If you leave everything to your new spouse by will, your children receive only what your spouse later chooses to leave them.

Common tools for blended families include:

• A trust that provides for your spouse during their life and then passes the remaining property to your children
• Specific gifts to your children of property that matters to them
• Beneficiary designations on life insurance or accounts that go directly to your children or their trust
• A prenuptial or postnuptial agreement that keeps certain property separate

Texas also gives a surviving spouse the right to live in the family homestead for life, whatever the will says (Texas Constitution, article XVI, § 52). A plan for a blended family should account for the home from the start.

Can a family law attorney prepare a will after divorce?

Yes. John B. Polk prepares simple wills, trusts, powers of attorney, directives to physicians and HIPAA authorizations. After more than 25 years of family law practice in Dallas, he drafts them with the decree in view: life insurance required for child support, property awarded in the divorce, and custody arrangements that affect who should be guardian. For a large or complex estate, he can tell you when a specialist is the better fit. Contact the office to update your documents.