As of the date of divorce, the following occurs automatically:
- Your durable power of attorney – the powers granted to your ex-spouse are terminated.
- Your life insurance policy – your ex-spouse is removed as a beneficiary.
- Your bank account – your ex-spouse is removed as a Pay On Death payee or beneficiary.
- Your inter vivos or testamentary trust – the provisions that designate your ex-spouse as a beneficiary, confer a general or special power of appointment on your ex-spouse, or nominate your ex-spouse to serve as trustee are revoked. The effect is as the ex-spouse disclaimed the interest or (in the instance of serving as trustee) died immediately before the divorce was granted.
- Your will – the provisions regarding your ex-spouse will be read as if your ex-spouse had died before you.
For your retirement accounts, it is a bit trickier. Texas law provides that your ex-spouse is automatically removed as a beneficiary, but the US Supreme Court decided in 2009 that Federal law (specifically ERISA) over-rides Texas law, and that if an ex-spouse is designated as beneficiary, then the ex-spouse gets the money.
Some caveats: the insurance companies and banks aren’t liable for paying your ex-spouse if you didn’t tell them about the divorce decree. None of the automatic exclusions take place if your divorce decree states that your ex –spouse must remain a beneficiary. Some of the automatic exclusions include not just your ex-spouse, but your ex-spouse’s relatives.
Best bet: once your divorce is final, and if your divorce decree doesn’t prohibit it, then change your documents and beneficiary designations immediately.
Hammerle Finley Law Firm. Give us a call. We can help.