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Paul Premack, Express-News Banner

San Antonio Express-News
Copyright 2009, Paul Premack
May 11, 1990

*Divorce Invalidates Certain Will Provisions*

Dear Mr. Premack: I was divorced from my husband in 1985. When we got divorced, our house was left in both our names but only I lived there. His 1965 Will named me as heir and executrix. He died in 1988. Now someone claiming that my husband owed him money has gone to Probate Court. Doesn't my ex-husband's will protect me? - S.L.

Your former husband may have believed that his 1965 will could protect you, but it does not. Under the Texas Probate Code, when you get divorced any provision in a Will written before the divorce giving any assets to the former spouse is void. Also, any provision making the former spouse executor is void.

Your ex-husband could have written a new will after your divorce. The new will would have over-ridden the Probate Code to put you in control.

His 1965 will cannot protect you from the creditor. However, Texas' homestead laws forbid the creditor from collecting his debt against your ex-husband's interest in your house until a time when it is no longer your homestead.

Will provisions to a spouse do not become void until divorce is final. If you die before the divorce is final, your spouse still inherits. If you are in the process of getting an unfriendly divorce, you should modify your Will immediately to remove your spouse.

Dear Mr. Premack: I am widowed for several years and have recently moved in with a man. We don't want to be married because that would affect our income. What is "common law marriage" and how does it happen? - M.V.

Common law marriage is the valid legal relationship of two people as husband and wife. It happens when two people agree to be married, then live together as husband and wife and tell other people that they are married.

No ceremony takes place and no license is issued, so proving the existence of the marriage can be difficult. If you stood to gain by being married, you could file a "declaration of informal marriage" with the county clerk. If you stand to lose by being married, then never "agree" that you are married and never tell anyone else that you are married.

Prior Column: Declaration of Guardian
Next Column: Business Structures for Self Employed - 1991

Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so  this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.


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