San Antonio Express-News, May 14, 1993

How to Handle Estate Plan during Divorce

© 1989-2004, Paul Premack

Dear Mr. Premack: My wife and I got a divorce six years ago. I have never made a new will, because I didn't really want to get divorced. So my will still leaves some money and land to her. I even think it is alright if she is the executor of my estate. But one of my sons is unhappy that his mother is getting anything at all. I need to be sure he can't interfere with my plans. Is there anything I should do to be sure my former wife inherits from me? -- H.L.

Your son can certainly interfere with your intentions, and as the facts now stand your son would win. The Will you made before you got divorced was changed automatically for you when the divorce was granted.

According to the Texas Probate Code, when you get divorced any mention of your former spouse becomes void. Any gift you make to her is "of no effect." She is no longer qualified to be your executor or trustee. So as it now stands, if you die your son can validly claim that your former wife is not entitled to anything.

However, your options are open. You can write a new Will, giving the same gifts and responsibilities to your former wife. If the Will is dated after your divorce, then the Probate Code no longer changes your intentions. The new Will effectively over-rides the Probate Code to put you in control.

You can also consider property arrangements that do not involve a Will. For instance, you can make your anyone you choose (your former wife or your children) the beneficiary of a life insurance policy. This holds true when naming the "pay on death" beneficiary of a bank account or certificate of deposit. You can legally name whomever you choose as the surviving beneficiary on your IRA. Or you could set up an inter vivos trust.

The trust could name you as its sole beneficiary as long as you are alive. It could then name your former wife (and, if you wish, your children) as beneficiaries after your death. When properly done, the trust will not require any type of probate. Hence your son will not have an easy way to contest the gifts you make to your former wife.

A word of caution for any of my readers who are in the process of getting a divorce: Willed gifts to your spouse are valid until divorce decree is signed. 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 reflect your intentions.