A divorce can be emotionally and financially taxing. One is often focused on getting through the process and finding a way to minimize losses. After the divorce, life is often about finding new routines and patterns and making life changes. Updating an estate plan may not even be on your radar at this point.
The Haga v. Thomas, No. 01–12–00218–CV (Tex. App.–Houston (1st Dist.) 2013) case provides an example of why wills need to be updated after divorce. While Texas law provides a remedy for when a will names a former spouse as executor and beneficiary, as demonstrated in the court case, the remedy does not always apply.
Facts and Procedural History
Mr. Thomas was a resident of North Carolina when he died. He owned personal property in North Carolina and real estate in Texas. He was survived by his parents.
Mr. Thomas executed a will three years prior to his death. He was married at the time and the will named his then-wife as the executor and the primary beneficiary. It also named his wife’s son as the successor executor and contingent beneficiary if his wife died before he did. The will also said that Texas law was to apply.
Mr. Thomas divorced his wife one year prior to his death, but Mr. Thomas’s step-son survived.
His will was admitted to probate in North Carolina by his step-son. Even though Mr. Thomas’ step-son had already admitted his will to probate in North Carolina, Mr. Thomas’ parents filed for probate in Texas.
Which State Can Probate the Will?
The law of the state a person is a resident of generally controls with respect to the probate of his personal property. For real property, the law of the state where the property is located controls.
Since the will was probated in North Carolina, the appeals court concluded that North Carolina’s law governed the disposition of Mr. Thomas’ personal property and Texas law governed the disposition of his Texas real estate.
This means that Texas law applies to determining who can serve as executor in the Texas probate and how to construe the will. This in turn impacts which beneficiaries are entitled to Mr. Thomas’ real estate.
The Will Providing For a Divorced Spouse
Texas law addresses situations where a will lists a former spouse as executor and/or as beneficiary. Specifically, Texas law provides that the will is read as if the former spouse and the former spouse’s relatives (those unrelated to the decedent, i.e., step children, in-laws, etc.) failed to survive the decedent. North Carolina law apparently does not include a similar provision.
Given that the will specified that Texas law applied, the Texas probate court concluded that the step-son was disqualified as executor, it admitted the will to probate in Texas for the disposition of the real estate, and it determined that the decedent’s parents were entitled to the Texas real estate.
This meant that Mr. Thomas’ parents would be the rightful beneficiaries of his Texas real estate, even though they would not have been the rightful beneficiaries if North Carolina law applied.
Updating a Will After Divorce
As this case shows, it is generally a good idea to update your will after a divorce to ensure that your wishes are carried out as intended and to avoid any potential disputes.
Here are some examples of situations when updating a will after a divorce may be necessary:
- You want to change the beneficiary designations: If your ex-spouse was designated as a beneficiary in your will, you will likely want to update these designations to reflect your current wishes. For example, you may want to name a new beneficiary or split the inheritance differently. Similarly, if you do want to have your ex be a beneficiary, you need to reaffirm this by updating your will after divorce.
- You want to appoint a new executor: If your ex-spouse was designated as the executor of your will, you may want to appoint someone else to carry out your wishes.
- You want to change the distribution of assets: If your will provided for your ex-spouse to receive a specific asset, such as the family home, you may want to update your will to reflect a new distribution of assets.
- You want to update your estate plan: A divorce can be a good time to review your entire estate plan, including your will, trusts, and other estate planning documents. You may want to revise your plan to reflect changes in your financial situation, family circumstances, or other factors. This applies to power of attorney forms and medical record release forms.
It is important to note that the revocation of provisions involving a former spouse only applies to wills. Other estate planning documents, such as trusts or life insurance policies, may require separate updates to reflect changes in marital status. If you are unsure whether your estate plan needs to be updated after a divorce, it is best to consult with an experienced estate planning attorney.
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