The Houston estate planning process can be complicated at any point during a person’s life. Generally, when relationships are altered—either in the case of a marriage or a divorce—changing the estate plan is not the first thought in a person’s mind. However, it is imperative to address the estate plan as soon as possible. Otherwise, the former partner could have legal rights if the individual becomes incapacitated or passes away before the divorce is finalized. For a lot people, this is not a pleasant thought.
Below are estate planning documents that should be altered while going through divorce proceedings:
A Last Will and Testament and Declaration of Guardians
For individuals who already have a will in place—created before the person was divorced—they may have questions about how they need to change their will. In Texas, getting a divorce does not invalidate your will. Instead, the will treats all provisions about the former spouse as if the former spouse preceded the individual in death. This means the former spouse has no rights in the estate as a beneficiary, executor, or administrator. Essentially, you’ll need to create a new will as soon as possible. And you might even consider revoking the old will just in case. Talk with an experienced estate planning attorney before you just tear it up or throw it away.
If a former spouse was designated as the beneficiary of the individual’s assets and property, they should think about who they would like to now inherit their belongings after they have passed. By speaking to an experienced estate planning attorney, individuals can include new beneficiaries in the will quickly. Additionally, if the couple has children, they can name an alternate guardian. While the former spouse would likely be the guardian of the children in case of the person’s passing, an alternative guardian (by Declaration of Guardian for a Minor) would take over if both parents die unexpectedly.
Power of Attorney Documents
For individuals who have a power of attorney document in favor of their former spouse—meaning if they were incapacitated, the person would have the ability to make decisions on their behalf—this should also be updated in their estate plan. Once a divorce action is finalized, the former spouse can no longer act on behalf of their partner. This is like a will where the spouse is still legally the beneficiary—unless the estate plan is altered—until the divorce is finalized. Because divorce proceedings can take quite some time, individuals should think about changing their power of attorney provision now, in case something unexpected occurs before the divorce is finalized.
Because the specific details of a couple’s divorce—along with the documents included in their estate plan—are unique, individuals going through a divorce should contact an experienced estate planning attorney who can help.
Contact a Houston Estate Planning Attorney
If you or a loved one is going through a divorce and needs to update their estate plan, contact the experienced Houston estate planning attorneys at McCulloch & Miller, PLLC. Divorces are often upsetting for all parties involved. We are here to help make one part of the process easier for you. We have years of experience crafting and changing estate plans, we will make the changes that best fit your unique needs. To speak with one of our attorneys today, call us at 713-333-8900.