Spend some time searching on the internet, and you will find no shortage of studies, statistics and facts about divorce. You will find everything from its major causes (money, infidelity) to its demographics (highest rate in Russia, lowest in India) to its incidences among occupations (highest among bartenders, lowest optometrists). As the rate of marriage trends downward in American society, the rate of divorce is not surprisingly somewhat slowing. Yet, the rate of divorce in second marriages is higher than in first marriages. And another noteworthy trend is the divorce rate among people age 50 and older has doubled in the last twenty years.
If not fascinating, these factoids at least focus us on the reality of divorce in our families, now or in the future. Anyone who has been even peripherally involved knows divorce is a long, arduous legal process. Upon conclusion of divorce, each person is faced with getting his or her proverbial new house in order and that includes updating the estate plan. However, following divorce, it is the rare person who is anxious to engage with another attorney for some time.
So, the question arises, “What happens if I die with a pre-divorce Will that includes my ex-spouse?” And that is only a part of the question, since many assets fall outside the purview of one’s Will, and separate statutes apply to those.
The Texas Estates Code provides that upon dissolution of the marriage by divorce, all provisions of an existing Will (including fiduciary appointments) in favor of the ex-spouse are void. Likewise, all such provisions in favor of a relative of the ex-spouse (such as a step-child of the decedent) are void in such a case. That is a relief for most people to hear. However, the Will can override these default rules, so it must be very clear and leave no ambiguity in its wording. In fact, many Wills are likely insufficient to address post-death intentions, so should be reconsidered and updated as appropriate. And while a revocable trust is afforded the same protections under the Texas Estates Code as a Will, an ex-spouse continues as a beneficiary of any irrevocable pre-divorce trust unless special provisions were drafted into it.
Some of the most significant assets that fall outside the purview of one’s Will are life insurance and retirement benefits. For this purpose, the Texas Family Code includes among retirement benefits an individual retirement account, employee stock option plan, stock option, or other form of savings, bonus, profit-sharing, or other employer plan or financial plan of an employee or a participant. Under the Texas Family Code, the pre-divorce naming of one’s spouse as beneficiary of any of these assets is ineffective upon divorce, unless the divorce decree designates the former spouse as beneficiary, or the designating spouse redesignates the ex-spouse after the divorce, or the ex-spouse was designated to receive the proceeds on behalf of the child of either spouse.
This is another example of where people should not be complacent. The reason is the institution that pays the ex-spouse in contravention of these statutes is not liable if it had no notice of the divorce. That leaves the intended heirs with having to sue the ex-spouse to recover what is rightly theirs under Texas law. Moreover, retirement benefits through a public retirement system are specifically excluded from the protection of these statutes. And of even broader application is the fact that Federal law “pre-empts” state law, so that a qualified retirement plan such as a 401(k) or profit-sharing plan or life insurance subject to ERISA must be paid to the named ex-spouse per the beneficiary designation, and the rightful heirs have no recourse but to sue the ex-spouse to recover. Therefore, one’s ERISA plan beneficiaries must be updated urgently following a divorce.
As if death is not difficult enough to contemplate following divorce, we must also consider what happens in the case of incapacity following a divorce. Fortunately, the Texas Estates Code terminates the ex-spouse’s power to act under a power of attorney upon divorce. And the Texas Health & Safety Code likewise does so as to a medical power of attorney.
Our message is clear: The real tragedy of life is not in failure but in complacency. And be assured, trusts and estates lawyers are far less contentious than family lawyers.