We have written about in previous blogs about the importance of having
an estate plan in place during a
Texas Divorce should something happen to you while you are going through a divorce.
I was recently reminded of how important this is when an attorney friend
of mine had some questions regarding a unique situation in one of his cases.
In the fact patter he gave me a husband and wife were going through a
divorce and had settled the case in
mediation. However, prior to proving up the divorce his client had died. His question
was whether the mediated settlement agreement was still enforceable in
court or did his clients spouse get everything?
Death During a Texas Divorce
Having written about death during a
Texas divorce no too long ago one of my first questions was “did his client have
a will?” the answer was no unfortunately. In my December 2016 blog
post “Texas Estate Planning, Divorce and Protecting Assets” I covered why you want to make sure you have an updated will for
situations just like this one.
However, in my friend’s fact pattern I still had hope that his deceased
clients wish would be carried out in regards to his estate. That summer
I had attended the Texas Advanced Family Law and in the conference I remember
a similar case being discussed. I couldn’t remember for sure but
I believed that a Mediated Settlement Agreement was still enforceable
after the death of one of the spouses.
I told my friend I would review the cases and see if I could locate the
information and let him know. After talking with him I did just that.
One I found was:
The death of a party to a pending
divorce proceeding abates the divorce action because a divorce action is a purely personal
matter. Dohrn v. Delgado,941 S.W.2d 244, 248 (Tex.App.-Corpus Christi 1996, no writ). The proper procedural disposition of a
divorce action when one of the parties dies is dismissal.
If the parties to a pending divorce have entered into a
Mediation Settlement Agreement and one party dies before entry of the final divorce decree, the Mediated
Settlement Agreement is immediately binding and will be enforced under
section 154.071 of the Texas Civil Practice and Remedies code and Rule
11 of the Texas Rules of Civil Procedure. See Spiegel. v. KLRU Endowment
Fund, 228 S.W.3d 237 (Tex. App.–Austin 2007) review denied (Sept.
28, 2007) rehearing of petition for review denied (Feb. 15, 2008).
Texas Civil Practice and Remedies Code Section 154.071 states that “EFFECT
OF WRITTEN SETTLEMENT AGREEMENT”
- If the parties reach a settlement and execute a written agreement disposing
of the dispute, the agreement is enforceable in the same manner as any
other written contract.
- The court in its discretion may incorporate the terms of the agreement
in the court's final decree disposing of the case.
- A settlement agreement does not affect an outstanding court order unless
the terms of the agreement are incorporated into a subsequent decree.
Divorce Pending at Death
divorce may be pending in the probate court at the time of the death of one of
the parties. In
In Re Graham, 971 S.W. 2d 56 (Tex. 1998), the Texas Supreme Court approved the transfer of a
divorce action from a district court to a probate court where one of the spouses was
incapacitated and the subject of a guardianship administration in the
probate court under the Section 608 transfer power.
Other case law has also provided that if a suit is filed in the family
court or other district court after the death of a party to a divorce
decree relating to obligations thereunder, the probate court in which
the decedent’s estate is pending may transfer such suit to the probate
court is the claim would affect the assets of the estate.
A FEW THOUGHTS WHILE YOUR DIVORCE IS PENDING
A planning tip for while your
divorce is pending to avoid extremely unpalatable results is that it is critical that you
should immediately revise your will to exclude their soon to soon to-be
As we see in the above scenario because the case had been settled in mediation
my friend’s client’s ex-spouse will not get the clients half
of the marital property. However, without a will:
- it is not certain that the people who will inherit are the ones his client
would want to inherit.
- Another thing think about is without a will had the case not settled the
other spouse would likely have gotten everything.
If you want to know more about what you can do,
CLICK the button below to get your
“16 Steps to Help You Plan & Prepare for Your Texas Divorce”
Other Articles you may be interested in:
- Texas Estate Planning, Divorce and Protecting Assets
- Texas Divorce and Child Support - Life Insurance Obligations
- $300 Divorce Cost a Man $100,000 in Texas
- Why having a will is important...
- 6 Tips - On How to prepare for a Texas Divorce
- Roadmap of Basic Divorce Procedure in Texas
- 6 Mistakes that can Destroy Your Texas Divorce Case
- Does it Matter who Files First in a Texas Divorce?
Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children
and families. If you have questions regarding
divorce, it's important to speak with one of our
Houston, TX Divorce Lawyers right away to protect your rights.
divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and
developing a strategy to meet those goals.
Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online
form. The Law Office of Bryan Fagan handles
Divorce cases in Houston, Texas, Cypress, Klein,
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