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Will Power: Revising Your Final Wishes During Divorce

The divorce process is fraught with paperwork — a lot of legal changes need to be made in order to give each partner independent status. Your will may be the last thing on your mind — but it shouldn’t be. Chances are that your spouse was primary beneficiary of your will while the marriage was happy. I will venture a guess that the idea of your ex inheriting your estate is not exactly appealing anymore.

Some state statutes do protect your estate if you happen to die after divorce and have not changed the terms of your will. In Texas, if a marriage is dissolved, whether through divorce, annulment, or declaration that the marriage is over, the provisions of the deceased spouse’s will, including all fiduciary appointments, will be approached as if the surviving spouse died first. In other words, the alternate executors would be appointed and contingent beneficiaries would become primary.

However, since you can change your will at any time in Texas, and don’t need to wait for the divorce to be final, this is a good time to make revisions that reflect your new status and wishes for the disposition of your estate. As a rule, you should change your will whenever your life changes.

By the same token, you probably need to revise the beneficiary on your life insurance, 401K, IRA, trusts, and other such documents. And don’t forget your living will and powers of attorney. Your attorney is an invaluable resource in making sure you cover all the bases.

Here are some things to consider as you rethink your will:

  • Custody of children — Unless your kids are grown, custody issues come into play when one spouse passes away. In cases of shared custody, the children usually go to live with the surviving parent. If that’s not what you want, your will is the place to state your wishes. Specify a guardian you can trust with your children. This is especially important if your ex is not able to take the kids.
  • Beneficiary — You may wish to choose a family member or new person in your life as your beneficiary. Even if your family is well aware that you don’t want your estate to go to your ex,an out-of-date will can complicate matters.
  • State law — Your will is a legally binding document governed by your state’s laws. Making changes that will stand up in court can be tricky; a family law attorney can guide you through the process. Whether you revoke your current will or amend the existing one, you want to make sure that your family has the most recent version.
  • Separate property — In previous Modern Families posts, we’ve discussed the need to protect property that you inherited or held before marriage. Once your divorce is final, community property is divided by the court and becomes separate. Your revised will should take all of your property into account.

Don’t have a will? The time to make one is now. Even if you’re not ready to make every decision and designation, a simple will can protect your estate — and may even be the first step toward declaring your independence from your ex. Your family attorney is ready to help.