The Importance of a Will During Divorce


End of life planning is difficult to think about generally, and even more difficult to think about when you are also contemplating a divorce.

At Justice Law Firm, we find that many couples have taken the time to meet with attorneys and therefore have the appropriate estate planning documents in place. A basic will package should include:

  • Last Will and Testament
  • Durable Power of Attorney
  • Medical Power of Attorney
  • Directive to Physicians

Some couples also have trusts in place and have carefully considered how they would want their assets and property distributed in the case of death.

Oftentimes, we see that one spouse leaves all or most of the property to the other spouse, or in trust for the benefit of any minor children. If you haven’t already done any end of life planning, it is imperative that you meet with an experienced attorney as soon as possible.

Why Do I Need a Will if I’m Getting Divorced?

If you do not have your own will in place in the State of Texas before you die, you are considered to have died ‘intestate’, and the intestacy laws of the State of Texas would then take effect and your property would be distributed according to the Texas Estates Code, and other statutes that have been enacted by our legislature.

What If a Spouse Dies in the Middle of the Divorce?

If a prior will or estate plan is put into place, and there is no court order dissolving the marriage, court order for annulment, or declaration that the marriage is void, then the parties are still legally married to each other and the spouse that survives would be entitled to take as a surviving spouse under the terms of the will or document, or under intestacy laws, as the case may be.

This means that during a divorce, unless you take steps to change your will or other testamentary documents, you are still considered married and your spouse could be inheriting things that you might not necessarily want them to have.

Remember, there is no ‘legal’ separation in Texas, so even if you are living separate and apart, you still need to have a valid court order for your legal status to be changed. In summation - you are not divorced until the Court says you are divorced.

Get Started Drafting Your Will Today

If you are thinking of divorcing your spouse, you will also want to consider drafting (or, re-drafting) your Last Will and Testament and also other documents mentioned above, such as any powers of attorneys that may list your spouse as your agent. The attorneys at Justice Law Firm are skilled in these types of matters and would be happy to speak with you about your particular situation.

To set up a consultation with our experienced legal team, call (817) 477-6756 today.

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