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Does first spouse or second spouse inherit?

Updated: Sep 27, 2021

Dear Mr. Premack: My mother wrote a Will many years ago when I was married to my first wife Beverly. We’d been married more than 20 years at the time, and my mother said in the Will that my wife should get a share of the estate. But we got divorced a few years later, and I’m married now to Diana. Mom died in late 2020, and we’re having an argument over whether that share goes to Beverly or to Diana. I think because it says my “wife” gets the share and Diana is my wife now, Beverly should not get anything. Is there any legal guidance that would help us? – H.O.

The real problem here is that you want to keep the entire estate, because having a share go to your current wife means the funds are essentially under your thumb. If the share goes to your former wife then, from your perspective, it is gone. The issue exists because your mother used a relationship term – “wife” – instead of a name. Relationships change over time so names are much more reliable identifiers.

Divorce has a variety of legal effects in estate planning. The law is clear that divorce ends any inheritance right your ex-spouse would have had if you had been the one to die. If your Will said “I leave my estate to Beverly”, then you got divorced, but you never changed your Will before you died, the law does not allow Beverly to inherit from you.

But we’re not dealing with a spouse-to-spouse (or ex-spouse) situation here. We’re dealing with a former mother-in-law to ex-spouse situation which is not treated the same under Texas law. Your divorce from Beverly did not automatically remove her from your mother’s Will as it would have done from your will as ex-spouse.

The question then becomes, “what was your mother’s intention at the time she wrote he Will?” At that moment, you were in fact married to Beverly. When your mother said she left a share to your “wife” the person filling that role was Beverly. When you got divorced from Beverly, your mother could have changed her Will but she did not.

There is actually a recent court decision that gives us guidance. In Ochse v Ochse, decided by the Appeals Court in San Antonio, there was a trust agreement that gave a share to the son and a share to his wife. They, too, later got divorced and the son remarried. The trust did not identify the wife by name, just by relationship role. It was a bad idea to leave off the wife’s name because when the trust’s maker died the dispute over the ambiguity went to court and cost a lot of time and money.

The trial court decided that the determining factor was the trust maker’s intention at the moment the trust was created. Since the first wife was “wife” at that time, and the trust was not changed when the divorce happened, the first wife still received the share (even though she was no longer the wife when the trust maker died).

The appeals court agreed. The justices ruled that there was no ambiguity. The intent was to give the share to the “wife” who was wife when the trust was signed, not to some unknown unanticipated future “wife” who the trust maker did not even know would exist.

So, in your situation, the share under your mother’s Will would go to Beverly (your first wife) not to Diana (your current wife). Your mother could have fixed this by either 1) including a name instead of a relationship role, or 2) updating her Will when the family circumstances changed. Since she did neither of those things, her intention at the time she signed the Will should win the day.


Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington.

March 13, 2021


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