Can I Change My Will Before My Divorce is Final?

There is a Texas statute that prohibits Courts from entering any orders that prevent parties in a divorce proceeding from changing his or her Will. Section 253.001 of the Texas Estates Code provides that a Court may not prohibit a person from executing a new Will, executing a codicil or an existing Will, or revoking an existing Will or codicil. The statute provides that any portion of a court order that purports to prohibit a person from changing his or her Will is void.

Note that this statute applies to Wills. There are assets that may pass to a spouse while divorce is pending regardless of whether you change your Will. For example, 401(k) plans or insurance policies obtained through work and governed by The Employee Retirement Income Security Act (ERISA) require married couples to designate their spouse as the primary beneficiary unless their spouse provides a signed and notarized waiver. Divorcing couples should modify beneficiary designations after their divorce is final to ensure those assets pass according to their wishes.

Additionally, courts sometimes enter temporary orders prohibiting parties to a divorce from altering beneficiary designations on individual retirement plans and life insurance policies during a divorce proceedings. The Estates Code Section mentioned above does not address these prohibitions.