What happens if you get divorced after making your will?

Robert Ray

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heirs at law saying that the provisions in the will giving everything to his ex-wife and his ex-step-daughter were no longer valid.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 intestate and 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.

 

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The Author

Robert Ray

Robert Ray handles inheritance disputes of all kinds. He takes cases throughout Texas.
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