Divorce, Adoption, and Other Marital Agreements

It is always advisable to update your estate planning documents after any significant change in family circumstances, including following a divorce or the birth or adoption of a child. The Houston Wills and Trusts attorneys at Garg & Associates are here to assist you in making amendments to your Last Will and Testament after such a significant life change to ensure that your updated or revised wishes are implemented.

However, if you are temporarily unable to make the advised changes to your documents, Texas’ default laws may step in to provide for your new family circumstances. This is particularly true in the instance of a divorce following the execution of your Will. Unless your Will expressly states otherwise, any part of your estate left to a former spouse (as well as any fiduciary appointments naming a former spouse) will be handled as though your ex-spouse predeceased you. In other words, although it is always best to update your will following a divorce or annulment, rest assured that your ex-spouse will not inherit from your estate, whether or not you’ve updated your Will since termination of the marriage.

The birth or adoption of a child also creates estate planning concerns. As far as the Texas default laws of descent and distribution are concerned with regard to inheriting from a parent, adopted children are treated exactly the same naturally born children. The adopted child and his or her descendants will inherit from the adoptive parent just as if he or she were the natural child of the parent. Likewise, the adoptive parent is entitled to inherit by and from the adopted child, just as parents are entitled to inherit from predeceasing naturally-born children. Note that as a general rule, the natural parents of an adopted child will not inherit from that child, but the adopted child will still inherit from his or her natural parents. Of course, a valid Will can override the default intestacy laws.

Often, a child will be born or adopted after a valid Will has been created by his or her parents. Generally, a well-drafted Will provides for the contingency of after-born or -adopted children. Many Wills create a class of children beneficiaries, which will include those children already born and those who may be later born to or adopted. Therefore, any testamentary gifts in a Will, for example, utilizing the term “to my children” will include those already in existence as well as those who are not. However, if no provision is made, the subsequent child may still inherit from you under Texas’ default “pretermitted child” statute. For example, if there are already children to whom devises or bequests are made in a Will, and a child is subsequently born or adopted who was not mentioned in the Will, that subsequently born or adopted child will take as though originally provided for along with the other children.

As is always the case in providing for (or perhaps not providing for) certain heirs, it always best to forego the default intestacy laws in favor of your own personal decisions. By creating a valid Will in Texas, you are allowed great flexibility in deciding not only which children will take from your estate, but in what amount, at what time, and in what manner. The Houston Estate Planning attorneys at Garg & Associates will assist you in implementing those decisions with regard to your children—both those who presently are and are not in being.

Again, as is the case after any change of circumstances—including a divorce, the birth or adoption of a new child, a death in the family, a substantial change in assets, or a change in tax laws—it is always of the utmost importance to review your documents with the Houston estate planning attorneys at Garg & Associates to ensure your previous estate planning still meets your needs. Changes may need to be implemented every few years if, as time progresses, your documents no longer accurately reflect your financial or personal situation.

We invite you to contact us for a consultation. Call Garg & Associates, PC at 281-362-2865 or complete our contact form.

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Garg & Associates, PC | 21 Waterway Avenue, Suite 300 | The Woodlands, Texas 77380 Please call 281-362-2865 | Fax: 866-743-4506
Serving The Woodlands, Spring, Houston, Conroe, Kingwood, Tomball, Cypress, Huntsville, Cleveland, Stafford, Montgomery County, Harris County, West Oaks, Memorial, Sugar
Land, River Oaks, Alief, Stafford, Missouri City, and Southwest Houston Texas.