Protecting Assets after a Second Marriage

This column first appeared in the San Antonio Express-News and other Hearst Newspapers on May 6, 2019.


Dear Mr. Premack: My parents had three children, and eventually they divorced. When in his 70’s my father remarried. She had two daughters from her first marriage. She and dad had a lawyer draw up Wills at the same time, which said that the first to die between them would get everything, and that on the second death everything would go equally the five children. After dad died, she probated his Will and received all his funds. About a two years later, she died. When her Will went to probate, we found out she had re-written her Will to leave everything to her daughters. Is there any legal action we can take to challenge this new Will she made? – D.N.


The general rule of law is that any person has the right to make a Will disposing of assets they own at any time. There are only a few restrictions on that broad legal right. Here are a few of the most common issues that can be used to challenge a Will’s validity.


First, the Testator (maker of the Will) must have testamentary capacity. The Testator must know the extent of her assets, of the identity of her family, and be able to decide how she wants to distribute her estate. Second, the Testator must not have been under undue influence of another person. The Will must express the Testator’s intent and instructions, not the desires of someone with power to twist the Testator’s arm.


Third, the new Will may violate a contract between the two spouses. If it violates a contract, the Will may still be treated as valid by the court, but the court may award damages for breach of the contract. In a recent case (Estate of Faccibene, 2018) husband and wife made a joint Will. Wife died, the joint Will was probated, husband received the estate, and later husband made a new Will leaving funds to his family only. This is similar to your situation, except that your father and his wife had two reciprocal Wills while the Faccibenes had one joint Will.


When husband Faccibene died, his wife’s children claimed the earlier joint Will was a contract between their mother and her husband. They claimed his new Will breached the contract, and they should be awarded money for the damage suffered by his breach of the contract.


The court ruled that, based on Texas law, a Will is only contractual if there is 1) a separate written agreement stating that the Will is contractual, or 2) the Will itself recites that it is contractual and states the terms of the agreement. Texas law also states that a joint Will (like Faccibene) or a reciprocal Will (like your father and his wife) are not contractual unless 1 or 2 above is included. The Faccibenes’ joint Will did not have either feature, so it was not contractual.


You can meet with legal counsel to review the reciprocal Will of your father and his wife to see if any contractual terms exist, or to explore whether his wife was under undue influence or lacked testamentary capacity when she made her new Will. But we warned: since her new Will has already been admitted to probate, Texas law gives you the burden to prove her Will is faulty ( it is not her daughters’ burden to prove the Will is valid). Think twice before you spend your time, energy, and resources challenging her Will.


For those of you in the position of D.N.’s father – who are in a second marriage and want to benefit both the new spouse and the children from the first marriage – be aware that you must take specific legal steps to protect both sides of the family. One approach is to make your Will and your spouse’s Will contractual. Another approach, and likely the better approach, is to leave your assets in a properly written Trust for the benefit of your second spouse. Even if your second spouse makes a new Will there is no power to dispose of the assets in the Trust. Your second spouse get benefits while alive, and your remaining assets eventually pass to the family members named in the Trust.

Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.


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Paul Premack, 2019-2020 President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) 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 Texas and in Washington State, and handles San Antonio Probate and Bexar County Probate, Wills, Living Trusts, Estate Planning, and writes the legal column for the San Antonio Express News.

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