Is Gift to Stepchildren Void if Testator is Divorced After Signing a Will?
I received a note yesterday from someone whose mother had recently passed away.
His mother’s Will, which was made before she divorced, identified her stepchildren as beneficiaries. The note’s author asked: “Do the stepchildren have any claim to my mother’s estate?”
The Texas Estate Code specifically addresses this issue. Section 123.001(b) provides that if a testator makes a Will, and the testator marriage is later dissolved by divorce, annulment, or a declaration that the marriage is void, then all provisions in the Will, including fiduciary appointments, will be read as though the former spouse, and all relatives of the former spouse who are not also relatives of the testator, did not survive the testator, unless the Will provides otherwise.
So for example, suppose Jill prepares a Will during her marriage leaving her all her worldly possessions to her husband, Jack, if he survives her, or if he doesn’t survive her, in equal shares to her son, Hansel, and stepdaughter, Gretel. If Jack and Jill get divorced after she signed her Will and Jill later dies, her Will would be read as though Jack and Gretel predeceased her, which means that all her worldly possessions would pass to Hansel.
May 22, 2018 at 3:23pm
Would it matter if the will did not specify “son” and “stepdaughter” and instead, simply named the parties? Would the will still be read as the stepdaughter predeceasing the testator?
May 29, 2018 at 12:37pm
It would not matter.