Updating Your Will After a Texas Divorce: What Changes Automatically and What You Must Fix

Texas law removes your former spouse from your will once the divorce is final, but that rule covers less than most people think. Life insurance, retirement plans, bank accounts and the people who act for you if you are ill or die follow different rules, and some of them do not change at all unless you change them. If you are working with a divorce modification lawyer in San Antonio, the estate documents are a good place to start, because a mistake here usually stays hidden until it is too late to fix.

This guide explains what the Estates Code and the Family Code do for you after a decree, where they stop and what a Bexar County resident should review in the months after the divorce is signed.

What Texas Law Changes Automatically

Section 123.001 of the Texas Estates Code applies when a person makes a will and later divorces, or has the marriage annulled or declared void. Unless the will says otherwise, the will is read as if the former spouse had died before you. The same rule applies to each of the former spouse’s relatives who is not also your relative. The rule reaches fiduciary roles as well as gifts, so naming your ex as executor or trustee no longer works after the divorce.

Three points matter in practice.

• It applies only after the marriage has ended. If you die while the divorce is pending, your spouse is still your spouse and the will is read as written.
• It reaches your former spouse’s family. A gift to an in-law who is not also your relative is treated as if that person died first.
• It yields to your wishes. A will can say that a gift to the former spouse should stand, and a court order or a contract dividing the marital estate can also change the result for some trust provisions.

Section 123.002 adds a related rule. A former spouse is not treated as your surviving spouse, with one exception: if the two of you married again and the later marriage was still in place at your death, the person is your spouse.

What Happens to the Gift That Fails

The statute removes the ex. It does not choose a replacement. Under Section 255.152, a failed gift that is not part of the residue becomes part of the residue. If your will left everything to your spouse and named no alternate, the residue is distributed as though you had no will.

For a person with no spouse, Section 201.001 sends the estate to the children and their descendants. That can be a fair result, but it may not be the one you would choose. Intestacy divides the estate by a fixed formula, offers no trust for a young child or a child with special needs, and does not name the person you trust to manage the estate. A new will lets you make those choices.

Life Insurance, Retirement Plans and Accounts Follow Different Rules

The will controls only property that passes under it. Many of the largest assets pass by contract, and Texas has separate statutes for each type.

• Life insurance. Under Family Code Section 9.301, if a decree is rendered after you named your spouse as beneficiary, that designation is not effective unless the decree names the former spouse, you name the former spouse again after the decree, or the former spouse receives the proceeds in trust for a child or dependent. Otherwise the proceeds go to the alternate beneficiary, or to your estate if there is none.
• Retirement and similar plans. Section 9.302 works the same way for retirement accounts, savings plans and similar financial plans, with exceptions for public retirement systems.
• Payable-on-death and survivorship accounts. Estates Code Section 123.151 makes a designation for a former spouse, or the former spouse’s relative who is not also your relative, ineffective in the same three situations. A bank that pays before it receives written notice may be protected, so send notice in writing.
• Revocable trusts. Under Section 123.052, a divorce revokes provisions in your own revocable trust that favor your former spouse or the spouse’s relatives, unless a court order, the trust terms or a contract dividing the marital estate say otherwise. Section 123.056 covers certain trusts that two spouses signed together.

Employer plans can be the exception. Federal law can override these Texas rules. Many 401(k) plans, pensions and employer life insurance policies are governed by ERISA. The United States Supreme Court has held that ERISA preempts a state law that revokes a beneficiary designation on divorce (Egelhoff v. Egelhoff, 532 U.S. 141 (2001)), and that a plan administrator may pay the person named in the plan records even when the decree says the ex-spouse gave up the right (Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, 555 U.S. 285 (2009)). If your ex is still named on an employer plan, assume the plan will pay your ex until the plan’s own records say otherwise.

Individual retirement accounts are generally outside ERISA, so Section 9.302 can apply, but you should not rely on that. Ask each custodian for a current beneficiary form and keep the confirmation.

Check the decree before you remove anyone. Do not take your ex off every policy without reading the decree. Divorce decrees often require a parent to keep life insurance for the children or to secure support payments, and the decree may name the former spouse, or a trust for the children, as the beneficiary. Changing that without a court order or an agreement can put you in violation. If the order secures a support obligation, see our guide to contractual alimony in Texas.

Why You Should Not Rely on the Defaults

• The statutes help only after a final decree. A pending case leaves the old documents fully in force.
• They remove your ex but do not tell you who takes the property or who serves as executor.
• They do not reach every account. Employer plans, transfer on death deeds and property held jointly can be controlled by other documents.
• They can be overridden by the will, the decree or an agreement, so an old document may still contain an exception you forgot about.
• Companies pay the person on their records. Notice in writing is often what makes the difference.

A Post-Divorce Estate Plan Checklist

1. Sign a new will. Write a will that reflects your current family. Name an executor and a back-up executor, decide who inherits and in what shares, and name alternates for every gift. If a child is young, consider a trust so the child does not receive everything outright at 18. Texas requires a will to be in writing, signed by you and attested by at least two credible witnesses who are 14 or older (Estates Code Section 251.051), so follow those steps exactly.

2. Review every beneficiary designation. Pull the current form or online record for each of these.

• 401(k), 403(b), pension and other employer plans
• IRAs and annuities
• Individual and employer life insurance
• Bank accounts with payable-on-death designations
• Brokerage accounts with transfer on death registrations
• Any transfer on death deed recorded against real estate

For retirement accounts that were divided in the divorce, review our guide to dividing retirement accounts and pensions so you know what you kept and what the decree gave your ex. If you are not sure how the decree allocates property, a San Antonio property division lawyer can read it with you.

3. Replace powers of attorney and medical directives. If your former spouse is your agent under a durable power of attorney, Estates Code Section 751.132 ends that authority when a court decree of divorce or annulment ends the marriage, unless the document says otherwise. The statutory medical power of attorney form has a similar rule for a spouse who is named as agent (Health and Safety Code Section 166.164). Do not rely on that alone. Banks, hospitals and doctors may not know about the divorce, so sign new documents, give copies to your agents and your doctor, and destroy or revoke the old ones.

4. Check how property is titled. A will does not control property that is held jointly or already passes by deed. Confirm that titles to your vehicles, accounts and real estate match the decree. For the house, the guide to dividing the marital home explains how the decree is carried out, and a deed or other recorded document may still be needed so the public record shows the result.

5. Name guardians and successors. If your children are minors, the surviving parent is generally their natural guardian under Estates Code Section 1104.051. A parent may name a guardian for the children in a will or a written declaration, and the court must appoint the person named unless the court finds the person disqualified, unwilling or not in the children’s best interest (Section 1104.053). Think through who you would name, and name a successor. If a guardianship may be needed, a San Antonio guardianship lawyer can explain the process.

During the Divorce and After It

While the case is pending, temporary orders may limit what you can change in accounts, insurance and property (see Family Code Section 6.502). Ask your lawyer before you change a beneficiary or move an asset. When the decree is signed, the work becomes simple: sign the documents, send the beneficiary changes, keep the confirmations and put a review on your calendar.

Waiting has a cost. If you die before the divorce is final, the old plan can apply as written. If you die after it, an old employer plan or policy can still pay your ex. Fixing the documents takes a few weeks of effort and can prevent a dispute among the people you intended to protect.

If You Remarry or Have a Blended Family

A new marriage changes your plan again. Review it before the wedding, because a new spouse has rights that interact with your will and your children’s shares. Common tools include a trust that provides for a surviving spouse and keeps the remainder for your children, life insurance for the children, and a written agreement with your spouse about separate and community property. If you remarry the same person, Section 123.002 treats that person as your spouse at death.

What This Means for Your Bexar County Case

1. Read your decree and any temporary orders, and note every insurance policy or beneficiary requirement.
2. List every account, plan and policy, and find the current beneficiary on each.
3. Change the designations in writing after the decree, unless the decree says to keep them, and keep the confirmations.
4. Sign a new will with alternates for every gift, and consider a trust for young children.
5. Replace your powers of attorney and medical directive.
6. Check titles and deeds against the decree.
7. Review the plan again after any marriage, birth, move or large change in assets.

More About Life After the Decree

These guides cover the court orders and deadlines that sit alongside an estate plan.

• Qualified domestic relations orders: how a retirement plan is divided.
• Post-divorce modification: changing orders after the decree.
• Enforcement of family court orders: when an order is not followed.
• Paying for college after divorce: what a decree can require.
• Texas Family Code guide: where the family statutes fit together.
• Texas family law deadlines: key dates for post-decree cases.

Why San Antonio Clients Choose Barton & Associates After a Divorce

Barton & Associates has tried Texas cases since 2001, and the family law team includes Duane Graeff, our managing attorney with more than 26 years in Texas state and federal courts, and trial attorney Désirée Flye. We start with your decree, because it decides which accounts you can change and which you must leave alone, and then we explain what each document does and what to do first.

We cannot promise a result. What we can do is tell you what the law requires, what we recommend and what each choice risks. The first consultation is free and confidential. Our San Antonio office is at 115 Camaron Street, San Antonio, Texas 78205. You can get directions to our office before your visit. For the first meeting, bring what you can of the following, and call even if you cannot find everything.

• Your divorce decree, any mediated settlement agreement and temporary orders
• Your current will, trust and powers of attorney
• Recent statements for retirement accounts, bank accounts and brokerage accounts
• Life insurance policies and the current beneficiary forms
• Deeds and vehicle titles
• The names and ages of your children and anyone you want to name as guardian or executor
• Any prenuptial or marital property agreement

Frequently Asked Questions

Does divorce automatically remove my ex-spouse from my will in Texas?

Yes, once the divorce is final. Under Estates Code Section 123.001, if your marriage is dissolved after you sign a will, the will is read as if your former spouse had died before you, unless the will says otherwise. The rule also reaches the former spouse’s relatives who are not also your relatives. It does not choose who takes the gift in your ex’s place.

What if I die before my divorce is final?

Your spouse is still your spouse, so the will is read as written. The automatic rule applies only after the marriage has been dissolved, annulled or declared void. A pending case does not change your will, your beneficiary forms or your powers of attorney. Ask your lawyer what temporary orders allow before you change anything while the case is open.

Does my ex stay on my life insurance after a divorce?

Often not, but you should not count on it. Under Family Code Section 9.301, a designation of a former spouse made before the decree is not effective unless the decree names the ex, you name the ex again after the decree, or the ex receives the money in trust for a child. Employer policies governed by federal law can follow different rules, so confirm with the insurer in writing.

Can my ex still collect my 401(k) after the divorce?

Yes, it can happen. Many employer plans are governed by ERISA, and the United States Supreme Court has held that a plan administrator may pay the person named in the plan records, even when state law or the decree would have removed that person (Egelhoff, 532 U.S. 141; Kennedy, 555 U.S. 285). Update the beneficiary form with the plan after the decree and keep the confirmation.

What about IRAs, payable-on-death accounts and transfer on death deeds?

Family Code Section 9.302 covers many retirement and savings plans, and Estates Code Section 123.151 covers payable-on-death and survivorship accounts, with the same three exceptions as the insurance rule. We did not find a comparable divorce rule for a recorded transfer on death deed in the sections we reviewed, so have any deed that names your ex reviewed and replaced.

What if my decree says I must keep my ex as a beneficiary?

Follow the decree until a court changes it. Many decrees require a parent to keep life insurance for the children or to secure support, and a designation made under the decree stays effective under the statutes. If the requirement no longer fits your situation, talk to a lawyer about modifying the order instead of changing the beneficiary on your own.

Who inherits the gift that was meant for my ex?

That depends on the will. If the will names an alternate, the alternate takes. If the gift is not part of the residue, it falls into the residue under Section 255.152. If the entire residue was left to your ex, it passes as though you had no will. For a person with no spouse, the children and their descendants inherit under Section 201.001.

Do I still need a new will if the law already removes my ex?

Yes. The statute removes your ex but leaves gaps: no replacement beneficiary, no new executor if your ex was named, no trust for young children and no plan for the assets that pass outside the will. A new will lets you decide each of those points, and Texas requires it to be in writing, signed by you and attested by two witnesses.

Does divorce cancel a power of attorney that names my spouse?

For a durable power of attorney, Estates Code Section 751.132 ends a spouse’s authority as agent when a court decree of divorce or annulment ends the marriage, unless the document says otherwise. The state medical power of attorney form has a similar rule. Banks and hospitals may not know about your divorce, so sign new documents, name successor agents and give copies to the people who need them.

Who becomes my children’s guardian if I die?

The surviving parent is generally the natural guardian of the children (Estates Code Section 1104.051). A parent may name a guardian in a will or a written declaration (Estates Code Section 1104.053), and the court must appoint that person unless the court finds the person disqualified, unwilling or not in the children’s best interest. Name a successor as well.

Can I leave something to my ex on purpose?

Yes. The automatic rule applies unless the will expressly provides otherwise, and you can name your former spouse as a beneficiary again after the decree. If you do, say so clearly in the document and keep the reason in your records. If the gift is meant for your children, a trust that you control is often safer than naming your ex to hold the money.

How soon should I update my estate plan after a divorce?

As soon as the decree is signed. Texas law does not set a deadline, but the old documents remain in force until you change them, and some employer plans can pay your ex regardless of state law. Start with the beneficiary forms and the new will, then replace the powers of attorney and check titles. Review everything again after a remarriage or the birth of a child.

What happens to my estate plan if I remarry?

You should review it before the wedding. A new spouse has rights that interact with your will and your children’s shares, and a plan that worked for a single parent may not do what you intend. Trusts, insurance for the children and a written agreement about separate and community property are common tools. If you remarry the same person, Section 123.002 treats that person as your spouse at death.

Talk With a San Antonio Lawyer About Your Plan After Divorce

The documents you sign in the months after a decree decide who is protected years later. Speak with a San Antonio divorce modification attorney at Barton & Associates to review your decree and decide what to change first.

Call our San Antonio office at 210-500-0000 or complete the online Free Consultation form to schedule a confidential meeting with a family law attorney in San Antonio. The office is at 115 Camaron Street, San Antonio, Texas 78205.

Main Category: Family Law
Practice Area Category: Post-Divorce
Barton & Associates, Attorneys at Law
115 Camaron St, San Antonio, TX 78205
Office: 210-500-0000