Texas law automatically revokes many provisions favoring a former spouse once a divorce is final: gifts and fiduciary appointments in a pre-divorce will, provisions in a revocable trust, an agent appointment in a financial power of attorney, and certain life insurance and retirement designations. But the automatic rules have gaps, most importantly for employer retirement plans governed by federal law, and they do nothing to keep a former spouse from managing assets your minor children inherit. A divorce should be followed promptly by a new will, new powers of attorney and a review of every beneficiary designation and deed.
What families should know
A divorce decree divides the marital estate. It does not rewrite your estate plan. Texas statutes fill some of the gap by treating a former spouse as if he or she had died before you for purposes of documents signed during the marriage, but those statutes are a safety net, not a plan. They do not name a new executor or guardian, do not decide who receives what instead, and do not bind every institution that holds your money.
The practical risks are concrete. A 401(k) or pension governed by federal ERISA law may still pay a former spouse who remains on the beneficiary form. Banks, insurers and hospitals may honor an old document until someone produces the decree and an argument. And if you leave property outright to minor children, a court may appoint their other parent, your former spouse, to manage it.
The checklist after divorce is short: a new will (usually with a trust for minor children), a new statutory durable power of attorney, a new medical power of attorney and HIPAA authorization, new beneficiary designations on every life insurance policy, retirement account and payable-on-death account, and recorded deeds that reflect the decree's division of real property and minerals.
The legal detail
Wills
If a testator's marriage is dissolved by divorce or annulment after the will is signed, the will is read, unless it expressly provides otherwise, as if the former spouse and each relative of the former spouse who is not also the testator's relative had failed to survive the testator. The rule applies to all provisions, including fiduciary appointments (Tex. Est. Code § 123.001(b)(1)). A former spouse is also not a "surviving spouse" for intestacy or any other purpose unless the two remarried (§ 123.002).
Revocable trusts and other nontestamentary instruments
Divorce likewise revokes revocable dispositions, powers of appointment and fiduciary nominations in favor of the former spouse, and the former spouse's non-blood relatives, in a trust instrument the divorced individual signed before the divorce and could revoke alone, unless a court order, the trust's express terms or a marital property agreement provides otherwise (§ 123.052). Revoked interests pass as if disclaimed; revoked nominations as if the former spouse died immediately before the divorce (§ 123.053).
Life insurance and retirement accounts
The Estates Code defers to the Family Code for insurance and plan designations (§ 123.052(c)). A pre-decree designation of the spouse as beneficiary of a life insurance policy is ineffective after the divorce unless the decree designates the former spouse, the insured redesignates the former spouse afterward, or the former spouse takes in trust for a child or dependent; the proceeds then go to the alternate beneficiary or, if none, the insured's estate (Tex. Fam. Code § 9.301). A parallel rule applies to IRAs and many employer and financial plans (§ 9.302).
Two limitations matter. First, an insurer or plan that pays the former spouse is liable to the proper recipient only if it received written notice before paying and did not interplead the funds (§§ 9.301(c), 9.302(c)). Second, for employer plans governed by ERISA, federal law requires the administrator to pay according to the plan documents, and the U.S. Supreme Court has held that ERISA preempts state revocation-on-divorce statutes as applied to those plans (Egelhoff v. Egelhoff, 532 U.S. 141 (2001)). A new beneficiary form filed with the plan is the only reliable protection.
Keep a copy of the final divorce decree with your estate planning documents. Your executor may need it to prove the marriage ended and how property was divided.
Powers of attorney and medical decisions
An agent's authority under a durable power of attorney terminates when the agent's marriage to the principal is dissolved, unless the instrument provides otherwise (Tex. Est. Code § 751.132(a)(3)). The medical power of attorney statute contains a comparable rule for a spouse designated as agent (Tex. Health & Safety Code § 166.155). Even so, signing new documents that name the people you now want is far better than relying on a hospital or bank to apply the statute correctly.
Transfer on death deeds
A final decree revokes a transfer on death deed as to the former spouse only if notice of the judgment is recorded, before the transferor's death, in the county where the deed is recorded (Tex. Est. Code § 114.057(c)). Without that recording, the deed may still pass the property to the former spouse.
Children's inheritances
When a minor inherits outright, a guardian of the estate or similar arrangement is usually required to manage the property, and the surviving parent is commonly the person who seeks that role. A testamentary trust, or a revocable trust named as beneficiary of life insurance and retirement accounts, lets you choose who manages the money and until what age.
| Document or asset | Automatic effect of divorce | Action recommended |
|---|---|---|
| Will signed during marriage | Former spouse treated as predeceased (§ 123.001) | Sign a new will with a children's trust |
| Revocable trust | Provisions for former spouse revoked (§ 123.052) | Amend or restate the trust |
| Life insurance | Pre-decree designation ineffective (Fam. Code § 9.301) | File a new beneficiary form |
| ERISA employer plan | State rule preempted (Egelhoff) | File a new beneficiary form with the plan |
| Durable power of attorney | Spouse-agent's authority terminates (§ 751.132) | Revoke in writing and sign a new one |
| Transfer on death deed | Revoked as to former spouse only if decree notice is recorded (§ 114.057(c)) | Record notice of the decree or a new TODD |
Frequently asked questions
Can my former spouse inherit from me after a Texas divorce?
Not under a will signed before the divorce, unless the will expressly provides otherwise: the former spouse is treated as having predeceased you (Tex. Est. Code § 123.001). A former spouse can still receive assets that pass by beneficiary designation, particularly from an ERISA-governed employer plan, if the designation is never changed.
Should I change my estate plan before the divorce is final?
You can usually sign a new will and powers of attorney immediately. Changing beneficiary designations or retitling property while the case is pending may violate temporary orders or standing orders, so coordinate with your family law attorney first.
Who manages my children's inheritance after a divorce?
If minor children inherit outright, a court may appoint their surviving parent, your former spouse, to manage the property. A trust in your will or a separate trust lets you choose the trustee and set the terms.
Does the divorce decree transfer title to the house or minerals?
The decree divides the property, but title in the county records should also reflect the division. A recorded deed, or a certified copy of the decree recorded in each county where real property or minerals lie, avoids title problems later.
Ready to put your plan in place?
We help families across Texas, from San Antonio, Austin and Houston to Dallas–Fort Worth and West Texas, create wills, trusts and powers of attorney in plain English, with most meetings by phone or video. Your first consultation is free.
Schedule a Free ConsultationLaw Office of Todd Worrich · 1045 Cheever, Suite 208, San Antonio, Texas 78217
Keep reading
Official sources
About the author
Todd Worrich is a San Antonio native and Texas attorney. He earned his undergraduate degree from Texas A&M University, his law degree from St. Mary’s University School of Law and an LL.M. in Taxation from SMU Dedman School of Law, and he has been recognized multiple times by Texas Super Lawyers. His practice focuses on estate planning, probate and helping Texas families recover oil and gas royalties. More about Todd
This article is general information about Texas law, not legal advice for your situation, and reading it does not create an attorney-client relationship. Laws change, and results depend on the facts of each matter. Attorney responsible for this content: Todd Worrich, San Antonio, Texas.
