Divorce is a period of significant change and emotional upheaval, not to mention one of the busiest periods of your life. Amid all the other demands on your time, it’s easy to overlook the practical- yet vital- task of revisiting your estate plan. Despite how unimportant it may feel, if you are contemplating, initiating, or actively engaged in divorce may be critical to update your estate plan to reflect the dissolution of your marriage. The choices made, or more commonly, left unmade, can have a long-lasting and detrimental impact on you and your loved ones.
Why Estate Planning During Divorce Matters
When a marriage ends, the emotional turmoil often overshadows practical concerns. However, the law does not wait for your emotional process to catch up. Until a divorce decree is final, you and your spouse remain legally bound. This bond extends to your rights and responsibilities regarding property, inheritance, and decision-making authority.
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- Unintended Inheritance: If you die before your divorce is finalized, your estranged spouse may be entitled to a substantial portion of your estate under state law—regardless of your intentions.
- Existing Estate Plans: Wills, trusts, powers of attorney, and beneficiary designations often name a spouse as primary beneficiary or agent. Unless these documents are updated, your soon-to-be ex-spouse may retain inheritance rights or control over your affairs should you become incapacitated or pass away.
- Children’s Interests: For parents, there’s an added layer of concern. Without an updated estate plan, children’s inheritances may pass through, or be managed by, an ex-spouse.
Potential Risks of Inaction
Failing to update your estate plan during divorce can lead to several undesirable outcomes:
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- Your estranged spouse inherits assets you intended for others, including children or family members.
- Unwanted control over health or finances if your spouse is listed as your agent in medical or durable powers of attorney.
- Ambiguity and legal complications that can force your heirs into court, increasing costs and prolonging the settlement of your estate.
- Loss of privacy regarding your intentions and asset distribution, due to probate litigation.
What Can Be Changed During Divorce?
The Texas Estates Code prevents Courts from prohibiting people to change their wills while a divorce is pending. That said, certain County Courts in Texas have standing orders restricting your ability to changing certain beneficiary designations during this time. It is important to work closely with legal counsel to understand:
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- Which documents and beneficiary designations can be altered without court permission.
- What steps must be taken to comply with local laws and court orders.
- How best to protect your interests without violating court rules.
Understanding Community Property in Texas
To understand what you can change during a pendency of divorce, it’s important to understand the importance of community property. Typically, married persons own separate property and an interest in community property. During the pendency of divorce, ownership of these assets will be confirmed by the court and finalized in a decree of divorce. At Heights Law Group, we can help you understand your estate planning options during the pendency of a divorce. The following chart gives a general description of what can, can’t, and might be changed:
| Document | Can Be Changed? | Considerations |
| Will | Yes, but what you can change might be limited. | You should consider removing your spouse as an executor and/or trustee and insert language regarding your intention regarding your spouse. For example: “It is my intention to make no provision for my spouse in my Will.”
You can dispose of your separate property and your ½ interest in community property. If your current Will lists specific assets, the ownership of which might be altered in a final decree of divorce, your attorney might advise you to remove the specific reference in your will in favor of a more generic description of your assets. For example, “I give all my separate assets and my interest in any community assets to…” |
| Powers of Attorney | Yes | Unless you trust your estranged spouse to make medical and financial decisions for you, it’s essential that you update these documents as soon as possible. |
| Trusts | Maybe | If you have a living revocable trust with your current spouse, speak to an attorney regarding whether you can amend or revoke it during the pendency of a divorce. |
| Beneficiary Designations (insurance, retirement, etc.) | Maybe | Changes may be limited by court orders; speak to an attorney before making any changes. |
Key Steps in Estate Planning During Divorce
1. Review Old Documents
Start by conducting a thorough review of your existing estate plan.
2. Update Beneficiary Designations
Assets such as life insurance policies, retirement accounts, and payable-on-death bank accounts pass directly via beneficiary designations. These designations override your will, so it is vital to update them promptly if permissible by law. Neglecting to do so can allow your soon-to-be ex-spouse to inherit these assets by default.
3. Appoint New Agents
If your spouse is currently named as executor, trustee, or agent in any capacity, such as medical and financial powers of attorney, consider appointing a trusted friend, family member, or professional in their place.
4. Consider Your Children’s Future
If you have minor children, your estate plan should designate guardians and establish trusts to protect their inheritance. Trusts can help ensure that funds are used solely for their benefit and not controlled by an ex-spouse.
5. Work with Experienced Professionals
Estate planning during divorce is complex. Collaborate with both your divorce attorney and an experienced estate planning lawyer to coordinate your efforts and avoid unintended consequences. At Heights Law Group, we’re here to help you navigate through this difficult period of your life.
