Until Death Do Us Part and the Texas Divorce?

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:

  1. 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.
  1. 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”

  1. 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.
  2. The court in its discretion may incorporate the terms of the agreement in the court’s final decree disposing of the case.
  3. 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

A 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 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 former spouse.

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:

  1. it is not certain that the people who will inherit are the ones his client would want to inherit.
  2. Another thing think about is without a will had the case not settled the other spouse would likely have gotten everything.

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Adobe Stock 62844981[2]If you want to know more about what you can do, CLICK the button below to get your FREE E-book: 16 Steps to Help You Plan & Prepare for Your Texas Divorce

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  3. $300 Divorce Cost a Man $100,000 in Texas
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  5. 6 Tips – On How to prepare for a Texas Divorce
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  10. $300 Divorce Cost a Man $100,000 in Texas

Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC 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.

Our 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, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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