Estate Planning for Divorcing Couples: What Happens if One Spouse Dies While Divorce is Pending?

A married man died recently. He had a Will which had been prepared shortly after he and his second wife got married.

When their Wills were prepared, the man and his wife were in love and trusted each other implicitly. They planned to leave everything they owned to each other when one died, and to all their children equally after both were gone.

Their lawyer suggested leaving assets to each other in trust rather than outright. They declined that recommendation, even though their lawyer explained that it might result in their children from prior marriages being disinherited.

“We trust each other to do right by our children,” they said.

So the lawyer prepared sweetheart Wills for the couple and they went on their way. Their marriage was happy for several years, but then started to deteriorate. The wife moved out. They filed for divorce.

But they never changed their Wills.

While the divorce proceedings were in progress, the man died. His Will was admitted to probate. It left everything to his estranged wife, who had no intention of sharing anything, including family heirlooms and property her husband had acquired before their marriage, with his children.

There is a Texas statute that provides 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, if one spouse dies before the divorce is final, that provision does not apply.

So if your marriage is in the process of ending, make sure you consult a lawyer as soon as possible to revise your Will and exclude your soon to be ex-spouse.

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