Warning: if you or a loved one are going through a divorce, this column contains content that might elicit a strong emotional response.
In Texas, you are either married or you are not; there is no half-way mark. A marriage can only be ended by divorce, annulment or death. Estrangement, separation, divorce pending – none of those matter.
To say you are vulnerable during an estrangement or pending divorce to the vagaries of your soon-to-be ex-spouse should you become sick, incapacitated or, heaven forbid, die is a gross understatement.
That is because Texas law only invalidates your designation of your spouse as agent or distributee when your marriage has legally ended, and not a moment before.
For example, had you designated your spouse beneficiary of your IRA? If you die during your divorce, your spouse gets the whole thing. Was your spouse named the sole distributee under your will? Sorry to tell you, but your spouse inherits all. As a bonus, if you had named your spouse as executor, then he or she gets to handle all of your private letters and belongings. Did you leave instructions that designated your spouse as your burial agent? You guessed it – upon your demise, your spouse will be picking a cheap cardboard coffin and burying you in Iowa.
The outlook is even more bleak if you did not have prior estate planning documents. That is because Texas law makes your spouse your default agent for lots of decisions in the absence of your written directive.
Consider what happens if you have a stroke and cannot make medical decisions. By statute, those decisions fall to your spouse. He or she can move you to a different hospital, decide who visits you, make a final decision on medications that should be administered, and direct whether you should have physical therapy. And just how fast do you think your spouse will tell the doctors to “pull the plug” if he or she stands to walk off with the entire marital estate upon your death?
Your spouse has a statutory right to be appointed your guardian. Sure there is a conflict, but the final decision is left up to a judge’s discretion and stranger things have happened. Do you really want your soon-to-be ex to serve as your Guardian of the Person with the right to choose your nursing home and set your standard of living?
If you die during your divorce, your spouse has a statutory right to donate your remains to a body farm, cremate your body and scatter the ashes over a garbage dump, choose a tone-deaf lover to sing at your funeral, direct that memorial contributions be made to a charity that you hated, and choose the picture that will run with your obituary.
The answer is to sign new estate planning documents as soon as you become estranged. If you are in the midst of a divorce, then consider the court’s standing orders or restraining orders before you make any changes.
This article does not constitute legal advice.