If you’re planning to divorce or have already begun the process, don’t forget about your estate plan. If you don’t have one, you should start thinking about it, but for now, we’ll focus on what parts of the plan can be changed prior to the final divorce decree and which ones need to wait.
Every plan is unique, so you’ll want to have individualized estate planning guidance. Let’s look at a few key points that most people are concerned about.
Your spouse’s inheritance
One question a lot of people ask is, “How soon can I remove my soon-to-be ex as a beneficiary?” You can’t disinherit someone to whom you’re legally married unless you have a prenuptial or postnuptial agreement in which they’ve agreed not to get a share of your estate. Further, since Texas is a community property state, most of your assets likely legally belong to both of you.
Once the divorce is final, you don’t actually have to “disinherit” your spouse. The law does it for you. Texas law states that “all provisions in the will, including all fiduciary appointments, shall be read as if the former spouse and each relative of the former spouse who is not a relative of the testator had failed to survive the testator.”
Note that if your spouse is a designated beneficiary outside of your estate plan – for example, on a retirement account or life insurance policy – you’ll need to replace them yourself if you choose. It’s typically best to wait until your property division and other divorce agreements are final before doing this. For example, if you will be paying spousal and/or child support, you may be required to have a life insurance policy with your ex as the beneficiary.
Fiduciary appointments
Note that the excerpt from the law quoted above referenced fiduciary appointments. These include your executor (personal representative), trustees, health care agents and other administrators.
If your spouse or any of their relatives is named to these positions, those designations will be invalid after the divorce unless you choose to keep them. You should be able to name others at any point, however. You don’t have to wait for the divorce to be final.
The best way to ensure that you make the appropriate estate plan modifications (at the right time) as you divorce is to have solid legal guidance throughout the process.