Possibly. I’ve previously written that a divorce voids any will provision in favor of an ex-spouse or his/her family. EC123.001(b), 201.001. If a new will is executed giving the ex-spouse property after the divorce or if the provision in favor of the ex-spouse is added to a will after the divorce, then those provisions in favor of the ex-spouse are valid. Likewise, I’ve previously written that a properly executed codicil republishes the will as of the date of the codicil. 280 2d 731. So, what does this all mean.
Problems After Divorce and Codicils
Let’s say a couple is divorced. Any provision in their wills in favor of the other one is void. Sometime later, the husband makes a codicil adding a small gift to his church. Because the codicil republishes the will as of the date of the codicil, those old provisions in the will in favor of the ex-spouse that were voided by the divorce now are brought back to life! The ex-spouse may inherit although that is not what is intended. The message for today is to go to your attorney and make a new will after a divorce. Otherwise, things that you don’t want to happen can happen.
Virginia has a statute that a spouse’s designation of the other spouse as a beneficiary in a life insurance policy is not valid if the husband and wife divorce. It goes further and provides that if the designation is not changed after a divorce and the insurance company pays the divorced spouse the benefits, the divorced spouse is liable to the current beneficiaries (usually the new life) for the benefits that they received. Texas has similar statutes.
In April 2013, the United States Supreme Court was asked by an ex-wife to declare that the Virginia statute was preempted by federal law where the life insurance policy was part of a federal workers employment benefit. In that case, the husband had named his wife as the beneficiary of his federal life insurance policy. He and his wife got divorced and he remarried but forgot to change the beneficiary designation to his new wife. When he died, his new wife claimed that she should be entitled to the proceeds of the policy based on the Virginia law that divorce nullifies a designation in favor of the divorced spouse. The Supreme Court held that the Virginia law was preempted by federal law which provided that the insurance policy would be paid to the designated beneficiary. The divorced spouse received the benefits as a result ot the ruling. It is important that you keep the beneficiary designations in your insurance and financial accounts up to date. If you don’t, your accounts or insurance proceeds may go to someone that you do not intend that they go to. No. 11-1221.
Copyright by Robert Ray a Texas inheritance attorney. The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, inheritance rights, have a family inheritance dispute, a property dispute or want information about contesting a will and need an inheritance lawyer, we can help. Please go to our main site www.texasinheritance.com and use the contact form to contact us today. We are Texas inheritance lawyers and would love to learn about your case and there is no fee for the initial consultation.
What happens if you get divorced after making your will?
When you get divorced, Texas law answers the question of what happens if you get divorced after making your will? Texas law provides that after a divorce, all provisions in a will in favor of a former spouse “must be read as if the former spouse failed to survive the testator” and are null and void. EC123.001(b), 201.001. Therefore, if you get divorced and don’t change your will, your ex-wife will not inherit under your will even if you want her to inherit from you. You would have to make a new will after the divorce in order for her to inherit from you under your will. Of course, if you don’t want her to inherit under the will, the law voids all provisions for her. To be safe, you need to change your will if there is a divorce.
Problems With Not Changing a Will After Divorce
A case decided by the Texas Supreme Court, In re Estate of Nash, shows how expensive litigation can result if you don’t change your will.
Nash’s Will left everything to his wife, or if she predeceased him then to the wife’s daughter, his step-daughter. Nash and his wife later divorced, but he never changed his Will. Both his ex-wife and her daughter survived him. A relative filed for probate seeking all of Nash’s property for Nash’s other heirs at law saying that the provisions in the will giving everything to his ex-wife and his ex-step-daughter were no longer valid. Since the will made no other provisions for the property, the relatives said that Nash died intestateand the property went to Nash’s heirs at law (nieces and nephews, etc.). The ex-step-daughter said that the property belonged to her arguing that Texas law treats the divorced wife as having predeceased Nash therefore the provision that if his wife predeceased him everything would go to the step-daughter came into effect.
The Court ruled against the ex-step-daughter and in favor of the relative, holding that since the ex-step-daughter only took under the contingency that her mother predeceased Nash, the ex-step-daughter did not inherit because her mother was still alive. This is true even though the Texas statute treats the mother as having predeceased Nash.
See also the post here about problems if you don’t change your will.
Moral of the Story
Nash may have had a good relationship with his ex-wife and/or with his ex-step-daughter (the Court doesn’t say) but even if he didn’t change his will because he thought it would all go to them, he was mistaken. And what would have happened if didn’t want his ex-wife or his ex-step-daughter to get anything and his ex-wife would have died before him? Would his ex-step-daughter inherit then? The moral of this case is that you need to redo your will after a divorce or the courts may decide who gets your property.
