Dear Mr. Premack: My husband and I have just divorced after an 8-year long second marriage. We each have children from our first marriages. While we were married, we made Wills that left everything to each other. Then our Wills said that if we died together in an accident or something, everything would go half to his kids and half to my kids. The court divorce decree left us as co-owners of the house we lived in, and though we have it listed for sale, in this economy it is taking a long time to find a buyer. Should I die while I still own half the house, does it still go to my ex-husband like my Will says? Someone told me that the Will was revoked by the divorce. I really don’t mind if he gets the house, because I know he’ll still split it equally between all the kids. – E.Q.
Section 69 of the Probate Code answers your question. The law does not revoke your Will; it does, however, modify your Will for you. It makes an assumption, which in most cases may be very logical, that if you are divorced then you no longer want to leave any assets to your former spouse.
The law states that “any provisions in the Will, including all fiduciary appointments, shall be read as if the former spouse… failed to survive the testator.” Your ex-husband cannot legally inherit or be Executor under the Will you made while still married to him. Instead, your estate will pass as though he had died before you, and your alternate Executor will become primary.
The legislature also makes a second assumption for you. The law states that “each relative of the former spouse who is not a relative of” yours is also treated as though they had died before you. Thus, your ex-husband’s children and grandchildren cannot legally inherit under the terms of the Will you made while still married to him.
It is very possible a partial intestacy could be created under that law – that is, that a gap could be left in your Will. The law says your ex-spouse must be treated as if he was deceased. If your Will says “If my husband predeceases me, I give ½ my estate to his children and ½ my estate to my children,” the law says his children must be treated as if they were deceased. Does your Will say what happens if his children are deceased? If not, the now-undesignated part of your estate triggers a complex probate proceeding called a “determination of Heirship”.
It is vitally important for you to make a new Will as soon as possible. Your new Will can cure all of the deficiencies created by the assumptions the legislature made for you. In your new Will, you can leave your assets to anyone you wish. You may decide to leave it all to just your children, and if they predecease you then to your grandchildren. Or you may legally decide to re-instate the terms of your prior Will by leaving the house to your ex-husband. So long your wishes are in a Will you signed after the date of the divorce decree, your specific wishes again rule (although you would be rare indeed if you decide to re-instate your former husband’s right to inherit).
Also, be aware that under Texas law, the divorce decree annulled your ex-husband’s appointment as Agent under your Durable financial Power of Attorney and under your Medical Power of Attorney. You should re-make those documents when you re-make your Will so that you have valid Agent appointments to handle your finances and medical care should you later become disabled.
Please note that I said “the divorce decree” changes the Will and Agent appointments. The decree is the end point of a divorce; before the decree is signed by the Judge the couple is still married. There may be months of legal wrangling before the decree is signed. During those months – though the relationship between spouses is at a low point – they still can inherit from each other and be each other’s Agent UNLESS action is taken to remove the spouse from those favored positions. It is vital that as soon as a petition for divorce is filed, both parties see their estate planning lawyers to change their Wills and Agent appointments. Don’t let the legislature’s assumptions rule. If you are in a divorce proceeding, make your own wishes known and legally binding by signing a new Will and new Agent appointments as soon as possible.
Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, April 30, 2012