To prepare for inevitable death, many people create a Last Will and Testament to control how their property is to be divided and to express their last wishes after they are gone. In most cases, a person simply leaves the majority of their belongings to their spouse and children. However, what happens when a marriage ends, but a will devising property to the ex-spouse is never changed before death? Does the ex-spouse still receive what was devised to him or her in the will? In Texas, the answer is no. Under the Texas Probate Code, upon the dissolution of a marriage, for any will provision naming the ex-spouse as a beneficiary or as a fiduciary, the ex-spouse and any relatives of the ex-spouse who is not also a relative of the deceased will be treated as though predeceased the decedent unless the will provides otherwise. Instead, whoever is the next in line, either through the lines of descent, as the residual beneficiary, or alternative fiduciary, will receive the gift or appointment. For example, suppose Husband devises $100,000 to his “Loving Wife” but a few years later they divorce and the will is never amended.
Because of divorce, Wife would be deemed as having predeceased Husband and would not receive the $100,000. The lucky beneficiaries of this cash would be the children of Husband and Wife or the residuary taker. The Probate Code also deems any relatives of the ex-spouse who are also not related to the decedent as having predeceased the decedent. This would include step-children, mother-in-laws, father-in-laws, and the like. However, if the ex-spouses remain on good terms or if the decedent wants to provide for step-child, for example, a simple re-execution of the will after divorce or a statement to the contrary will permit the ex-spouse or ex-relatives to receive.
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