Did you know that legendary crooner Barry White died without a will? That's right- the man whose baritone voice has entertained us for generations died in 2003 without a plan in place for his estate. All of us should have a will or an estate plan in place for the benefit of our families, friends, and anyone that could stand to improve the quality of their life by being a part of your estate plan. Estate plans can be tailored to suit your wants and the needs of those around you. There is no such thing as a one size fits all estate plan. Rather, you can and should consider what you need out of an estate plan and then set a goal for yourself to be intentional about accomplishing those goals.
One of the reasons why having an estate plan is so important is that none of us know the precise moment in time that will be our last. I know that this is a blunt statement to make and one that most of us do not like to think about, but it is the truth. The unvarnished truth is that we cannot say with 100% accuracy when we are going to pass on from this life. When that time comes there will be no second chances or additional opportunities to see to it that we can plan our estate or tie up any loose ends like that. Rather, the harsh reality is that we will be gone and our families will be the ones who stand to either benefit from our planning or suffer the consequences due to our lack of diligence.
Barry White has a legacy. His sultry voice sold millions of albums and was the soundtrack for movies and intimate moments alike. All of us can recall at least one Barry White song, I am reasonably sure of that. You would guess that a man with that kind of legacy, impact, and wealth would have taken more care to be prepared for an end-of-life situation. Couple this with the reality that Mr. White had been divorced, remarried, and then living with another woman when he passed away and you have a tricky, messy, and sad situation. We don't know exactly what was going on in Mr. White's life at the time of his passing, but we can presume that there was some opportunity for him to engage in basic estate planning before his time ran short.
This is what we would like to discuss with you today here on the blog for the Law Office of Bryan Fagan. What happened with Mr. White does not have to happen with you. You can and should put some thought and some planning into how you can prepare for the end of your life as far as estate planning is concerned. You do not have to be a millionaire performer to do it, either. Anyone can plan their estate successfully. The Law Office of Bryan Fagan is here to help you do just that.
What does the law in Texas say about a will after divorce?
Going through a divorce is a huge endeavor to take on. We have run across many people over the years who have stayed in a failing marriage if only to avoid having to go through a divorce. This process involves filing paperwork, separating finances, and sometimes figuring out possession time with your children if they are still minors. There is a lot to take on and the stress associated with the divorce can be something that causes many people to reflect as to whether it is even worth it. Ultimately, only you and your spouse can say whether the juice is worth the squeeze, so to speak.
The Texas Estates Code is clear that if you obtain a divorce from your spouse then any portion of your will which relates to your ex-spouse will be revoked. So if you have a will that directs the executor to distribute $400,000 worth of property to your spouse at your death, but you are now divorced, that part of the will would no longer be valid. The executor would not need to follow those instructions.
What this does not answer is what would happen if you were going through a divorce and passed away while still married. Your spouse would still be able to inherit from you despite you and she is going through a divorce. This is not an ideal situation, to say the least, but at least you were able to make sure that much of your property was accounted for. People like Mr. White who died have no say so over how their property is distributed. Rather, a probate court judge in Texas or in whatever state Mr. White was a resident would have the authority to divide up his estate after creditors are paid.
This should tell us two things about divorce and estate planning. Number one, you are not divorced until the judge signs the Final Decree. The Final Decree of Divorce contains all of the provisions necessary for you and your spouse as far as how your property is going to be divided among other things. However, do not start to make moves with your belongings until you know exactly what is happening with them. To start to sell or divide your marital estate before the judge gives you the authority to do so would be a mistake.
Next, until you are divorced you and your spouse are just as much married as you ever have been. This can have major consequences for how property is divided upon your death. If you pass away while going through a divorce, then a probate court judge could distribute property to your ex-spouse if you have a will. Your children or any other interested parties may attempt to contest this, but following the letter of the law, you are still married at that point. This can cause disagreements and just a generally messy situation.
However, before you start to try and update your will or make changes to your estate plan while you are going through a divorce you should plan to talk with an experienced estate planning attorney as well as an experienced divorce attorney. Fortunately for you, the attorneys with the Law Office of Bryan Fagan are equipped to answer both kinds of questions simultaneously. The focus of our law practice is on family law and estate planning. You can save time and money by talking to us in a free-of-charge consultation about how we can best serve you as a potential client.
What happens with your ex-spouse within your will?
Once you get divorced it is up to you to update your will. This should be done as soon as you can but only after you have planned out what you want your estate to look like after your divorce is over with. The reality of the situation is that your estate may look very different now than it did before your divorce. You may have lost or gained property, you may have sold a house, or taken on the responsibility of paying a mortgage on your own. These are all factors that need to be considered at this time in your life when you are rethinking what belongs in your estate plan and what your financial realities are after your divorce. Not that these immediate concerns should be the most important thing when you are planning your estate but if the property is no longer yours anymore you need to make those corrections or changes to your will.
This brings us to the topic of how your ex-spouse is treated in your will. Let’s say that you and your spouse just got divorced last week. The ink is not yet dry on the final decree of divorce but because you are a thoughtful, diligent individual you are already thinking about how the divorce has impacted your estate plan. What you would need to learn first is that any provision in the will which involves your ex-spouse is now going to be thrown out of the will, effectively. So, it is not a situation where your ex-spouse stands to receive a lot of property from you in the divorce if that is not your desire. If you were to suddenly pass away your ex-spouse will not inherit property from you even if you have not yet been able to update your will.
This is true even if you have named your ex-spouse as the executor of the will. To make sure that we are all on the same page, the executor of a will is the person who oversees inventorying property, paying creditors, and ultimately distributing the remaining property by the wishes of the testator (the person who created the will). The executor has no legal authority to act beyond what is stated in the will. Your ex-wife is not going to be the first person that you would think of who you would like to perform this job for your estate. With that said, she would not be the one to fulfill this responsibility under the law in Texas.
Again, however, this does not mean that you can afford to dilly-dally and wait around to update your will or trust. There is not only going to be a situation where your property has changed over time, but you are doubling down on these losses by not updating your estate plan as soon as it is practical for your family. One thing to keep in mind is that even if you cannot update your will until your divorce is over you can still think about what you are going to do. Once it becomes clear to you what the final outlook of your case is going to be you can start to plan rough drafts of a will. Once the divorce is done and over with you can then put that plan into motion and work with an experienced estate planning attorney to make sure that you have the best plan possible for your family.
Why should you update your will or trust after a divorce?
So far in today's blog post, we have discussed what happens to your ex-spouse within your will after a divorce. This topic involves cautionary tales or warnings more than it does positive aspects of estate planning. Now we are going to share with you some thoughts on forming your "why" when it comes to estate planning. We are all familiar with the carrot-and-stick method of motivation. You can use the stick and whack someone behind to him move or you can entice him with the carrot to do what must be done. The stick method when it comes to estate planning is that you don’t want your ex-spouse to have any say so over your estate. Now that we have established that this isn’t likely in Texas, we can get into the factors which can motivate you in a positive way to update your estate after your divorce.
Right off the bat, your children will benefit when you update your will based on the current circumstances of your life. All your hard work was done in part to benefit your children. By updating your will, you ensure that your children will be able to receive the maximum amount of benefit possible from the property which you have worked so hard to accumulate. This is part of your legacy, after all. It would be rude to argue that your legacy is all wrapped up in money and property, but it would also be unrealistic to say that no part of your legacy was financial. Rather, you will want to ensure as best as possible that the property you want your children to receive after you pass away is positioned to do so.
Consider what your objectives were when it came to leaving the property for your children in the will or trust you created before you got divorced. It could be that you created the will or trust with goals in mind that you had to compromise with your spouse on. Now that the two of you are no longer married, you may have completely different goals or objectives in mind for the estate plan. You have the ability now to see to it that you can follow your sense of right and wrong when creating an estate plan concerning your family. It does not have to be something where you acquiesce to your spouse any longer.
As we mentioned earlier in today's blog post, if your former spouse is listed as the executor of your estate or the trustee of a trust then you should certainly seek to update those positions within your estate plan. You should talk with any person who you believe can fulfill these obligations on your behalf. A trusted colleague, business partner, sibling, or other person that you expect to be able to fulfill these obligations is a worthy candidate. It is best to speak with these folks before placing them into these positions of responsibility within the estate plan. The last thing you want is to surprise someone by having them named as an executor of your will, for instance.
There is something about a divorce that can cause your eyes to open to be able to see a situation from a completely different vantage point. For example, you may have learned things about family members that you previously were unaware of because of the divorce. Who is there for you when you needed them the most? Which family members decided, instead, to take sides instead of being a neutral party and someone you could talk to? These are relevant questions to ask and may cause you to want to revise or update the beneficiaries in your will. On the other hand, people in your life may have come forward to help you or support you during this time. You can consider all these circumstances when determining who you want to be a beneficiary in your estate planning.
Whatever you decide to do when it comes to estate planning, it is best to do so intentionally. This means that you should not out of the blue or suddenly decide to make a change to your estate plan without having thought through the consequences and considered what could happen in the future because of your desired changes. It is a good idea for you to gain as much information as possible when it comes to estate planning so that you can act wisely and prudently for yourself and your family.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed estate planning attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas estate planning as well as how your family’s circumstances may be impacted by the filing of a probate case.