Can I Change My Will Before My Divorce is Final?

Couples who are happily married make different estate planning choices than couples who are separated and heading towards divorce.

Happily married couples generally create Wills that protect and provide for their spouses, but in the midst of a separation, their wishes change. They want to exclude their spouses and wonder what will happen if they die before the divorce is final.

So they often ask:  Can I change my Will before my divorce is final?

Section 253.001 provides that a court may not prohibit a person from:

• Executing a new Will;
• Executing a codicil to an existing Will; or
• Revoking an existing Wil or Codicil in whole or in part.

It further provides that any portion of a court order that purports to prohibit a person from executing a new Will or codicil, or revoking an existing Will or codicil is void and may be disregarded without penalty or sanction of any kind.

This statute was enacted because there were reports that some judges were entering temporary orders in divorce matters prohibiting spouses from changing their Wills or revoking their Wills before their divorces became final.

The statute makes it clear that such orders are void and may be disregarded.

A Texas statute does provide that if, after making a Will, the testator’s marriage is dissolved, either by divorce, annulment or a declaration that the marriage is void, all the provisions in the Will, including all fiduciary appointments, will be read as if the former spouse predeceased the testator; however, that does not apply during a separation.

So if you and your spouse are separated and in the process of getting a divorce, make sure you consult your lawyer as soon as possible to revise your Will.

Otherwise, the person you would least like to benefit when you die might be the one who ends up with everything.