Divorce Invalidates Certain Will Provisions

Dear Mr. Premack: I was divorced from my husband in 1985. When we got divorced, our house was left in both our names but only I lived there. His 1965 Will named me as heir and executrix. He died in 1988. Now someone claiming that my husband owed him money has gone to Probate Court. Doesn’t my ex-husband’s will protect me? – S.L.

Your former husband may have believed that his 1965 will could protect you, but it does not. Under the Texas Probate Code, when you get divorced any provision in a Will written before the divorce giving any assets to the former spouse is void. Also, any provision making the former spouse executor is void.

Your ex-husband could have written a new will after your divorce. The new will would have over-ridden the Probate Code to put you in control.

His 1965 will cannot protect you from the creditor. However, Texas’ homestead laws forbid the creditor from collecting his debt against your ex-husband’s interest in your house until a time when it is no longer your homestead.

Will provisions to a spouse do not become void until divorce is final. If you die before the divorce is final, your spouse still inherits. If you are in the process of getting an unfriendly divorce, you should modify your Will immediately to remove your spouse.

Original Publication: San Antonio Express News, May 11, 1990

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Paul Premack has been a Board Member and has served as President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) and is a Member of the Washington Chapter of NAELA. He is *Certified as an Elder Law Attorney (CELA) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in the States of Texas and Washington and handles Estate Planning and Probate in Texas and Washington, including and Bexar County and King County Probate, Wills, Living Trusts, Durable and Medical Powers of Attorney, and Elder Law. Premack writes the legal column for the San Antonio Express News which is syndicated in other Hearst Newspapers around the USA.

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