Updating Your Will After Divorce in Texas (2023)

Updating Your Will After Divorce in Texas: What You Need to Know

In Texas, a divorce can significantly impact the validity of a will. According to the Texas Estates Code § 123.001, divorce or annulment of a marriage revokes any provision in a will that relates to the former spouse. In other words, if your will includes provisions for your ex-spouse, those specific provisions are automatically revoked upon the finalization of your divorce.

For example, if your will designated your ex-spouse as the executor of your estate or a beneficiary, those provisions would be nullified once the divorce is finalized. Similarly, if you had appointed your ex-spouse as a trustee of a trust you created for your children, that appointment would also be invalidated. Updating your will after divorce is common.

Don’t leave your estate planning to chance. Contact Varghese Summersett Family Law Group today to ensure that your will and estate plan are updated and aligned with your wishes after divorce.

Why You Should Update Your Will After Divorce

Although Texas law automatically revokes certain provisions related to your ex-spouse in your will, it is still essential to update your will after divorce. Here are some reasons why:

Protect Your Children’s Inheritance: Updating your will after divorce allows you to ensure that your children’s inheritance is safeguarded. You may want to establish a trust for your children to provide financial stability and appoint a new trustee to manage the trust.

Update Your Executor and Trustee: Since the provisions related to your ex-spouse are invalidated after divorce, it is crucial to appoint a new executor for your estate and a new trustee for any trusts you have created.

Revise Your Beneficiaries: You may want to make changes to your will to include new beneficiaries or remove beneficiaries you no longer wish to inherit from your estate. This could involve updating the distribution of your assets and ensuring that your estate plan reflects your current wishes.

Address Potential Challenges to Your Will: Without updating your will after divorce, it may become vulnerable to legal challenges by your ex-spouse or other family members. By revising your will and making your intentions clear, you can reduce the likelihood of disputes and ensure that your wishes are carried out as intended.

Estate Planning and Inheritance Issues After Divorce

In addition to updating your will after divorce, it’s important to address other estate planning and inheritance matters, such as:

Update Beneficiary Designations on Retirement Accounts and Insurance Policies: Your ex-spouse may still be listed as a beneficiary on your retirement accounts and life insurance policies, even after your divorce. It’s essential to update these designations to prevent unintended consequences.

Revise Powers of Attorney and Advance Directives: If you had appointed your ex-spouse as your agent in a power of attorney or named them in your advance directive for health care decisions, you should revise these documents to appoint a new agent and ensure that your wishes are respected.

Consider Tax Implications: Divorce can have tax implications for both your estate and your beneficiaries. It’s important to consult with an experienced attorney who can help you navigate these complex issues and optimize your estate plan.

How to Update Your Will After Divorce in Texas

Updating your will after divorce involves the following steps:

Review Your Current Will

Begin by thoroughly reviewing your existing will to identify any provisions that involve your ex-spouse or need to be revised due to the changes in your circumstances.

Consult with an Experienced Family Law Attorney

One of our attorneys who specializes in family law and estate planning can help you navigate the process of updating your will after divorce to ensure that your new will complies with Texas law.

Draft a New Will or Codicil

Your attorney can either help you draft a new will or create a codicil, which is an amendment to your existing will. This document should clearly state the changes you want to make and be executed following Texas law requirements.

Execute Your New Will or Codicil

In Texas, a will or codicil must be signed by the testator (you) in the presence of at least two witnesses who are at least 14 years old. Alternatively, you can execute a holographic will, which is a will that is entirely handwritten and signed by the testator without any witness requirements.

What’s a testator?

A testator is a person who creates a will. This individual outlines their wishes regarding the distribution of their assets and property upon their death. The testator also appoints an executor in the will, who is responsible for managing the estate and ensuring that the testator’s wishes are carried out according to the provisions of the will. To create a valid will in Texas, the testator must be at least 18 years old, married, or a member of the armed forces, and must be of sound mind at the time of drafting and signing the will.

Store Your Updated Will in a Safe Location

Ensure that your new will or codicil is stored in a secure location, such as a safe deposit box or with your attorney. Inform your executor and other relevant parties of its location to avoid any complications in the future.

updating your will after divorce

FAQ: Texas Laws Covering Wills, Living Wills, and Divorce

What is a will?

A will is a legal document outlining how a person’s assets and property should be distributed upon death. It also allows the testator (the person who creates the will) to appoint an executor, who will be responsible for managing the estate and carrying out the testator’s wishes.

What is a living will?

A living will, also known as an advance directive, is a legal document that specifies a person’s preferences for medical treatment and care in the event they become incapacitated or unable to make decisions for themselves. In Texas, a living will is called a “Directive to Physicians and Family or Surrogates.”

What is the difference between a will and a living will?

A will addresses the distribution of assets and property after a person’s death, whereas a living will outlines their healthcare preferences in case of incapacity. A will becomes effective only after the testator’s death, while a living will is effective when the person is still alive but unable to make decisions for themselves.

How does divorce affect a will in Texas?

Under Texas Estates Code § 123.001, divorce or annulment of a marriage automatically revokes any provisions in a will that relate to the former spouse. This means that provisions naming the ex-spouse as a beneficiary, executor, or trustee are invalidated upon the finalization of the divorce.

How does divorce affect a living will in Texas?

Divorce may also affect a living will, particularly if the ex-spouse is named as the person responsible for making healthcare decisions on behalf of the individual. It is recommended to update your living will after divorce to ensure that your healthcare preferences are carried out by someone you trust.

Can a divorced spouse inherit from a will in Texas?

No, a divorced spouse cannot inherit from a will in Texas unless the will is updated after the divorce to specifically include the ex-spouse as a beneficiary.

How do I update my will after a divorce?

Updating your will after divorce requires consulting with an experienced family law attorney who can help you draft a new will or create a codicil (an amendment) to your existing will. This document should clearly state the changes you want to make and be executed following Texas law requirements.

Can I disinherit my spouse in Texas?

In Texas, you cannot completely disinherit your spouse unless there is a prenuptial or postnuptial agreement in place that waives their right to inheritance. Otherwise, a surviving spouse is entitled to a portion of the deceased spouse’s estate, known as the “community property.”

What are the requirements for a valid will in Texas?

In Texas, a will must meet the following requirements to be considered valid:

The testator must be at least 18 years old, married, or a member of the armed forces.
The testator must be of sound mind.
The will must be in writing and signed by the testator or someone at the testator’s direction.
The will must be signed in the presence of at least two witnesses who are at least 14 years old. Alternatively, a holographic will can be considered valid if it is entirely handwritten and signed by the testator, without any witness requirements.

How can I revoke a will in Texas?

A will can be revoked in Texas by:

Creating a new will or codicil that explicitly revokes the previous will.
Physically destroying the will (e.g., burning, tearing, or obliterating it) with the intent to revoke it, either by the testator or by someone in the testator’s presence and at their direction.
Divorce or annulment, which automatically revokes any provisions in the will related to the ex-spouse.

What happens if I die without a will in Texas?

If you die without a valid will in Texas, your estate will be distributed according to the state’s intestacy laws. These laws dictate how your assets will be divided among your surviving relatives based on their relationship to you. In general, your assets will be distributed to your spouse, children, and other close relatives in a specific order established by Texas law.

Is a will from another state valid in Texas?

A will that is valid in the state where it was executed is generally considered valid in Texas. However, it is a good idea to consult with a Texas attorney to ensure that the will complies with Texas law and to address any potential issues that may arise during probate.

How do I create a living will in Texas?

To create a living will in Texas, you must complete a “Directive to Physicians and Family or Surrogates” form. This document allows you to specify your preferences for medical treatment and care in the event you become incapacitated. The form must be signed by you (the declarant) and two qualified witnesses or a notary public. It is recommended to consult with an attorney to ensure your living will is legally valid and accurately reflects your wishes. Don’t leave your estate planning to chance. Call Varghese Summersett today at 817-900-3220 or contact us online for assistance with updating your will, living will, and other estate planning documents after divorce.

Get the Legal Support You Need to Update Your Will After Divorce in Texas

At Varghese Summersett, our experienced family law attorneys understand the importance of updating your will and estate plan after divorce. We can guide you through the process and ensure that your estate plan reflects your current wishes, providing peace of mind for you and your loved ones. Don’t wait – call us today for a consultation at 817-900-3220 or contact us.