Wrong Bodies and Right Laws: Courts and Legislature Speak

The courts and the legislature have been very busy.  Here are a few select recent happenings.


Divorce cuts off your former spouse’s right to decide what will happen to your body after your death and who gets to sit on the front row at your funeral.  This new law dovetails nicely with existing law that says divorce cuts off your beneficiary designations naming your former spouse.

If you walk into the funeral home for a viewing after your spouse dies and discover that they put the wrong body in the coffin, then you have the right to sue the funeral home.

A testator (the person who makes a will) can name a “protector” in his or her will who can appoint an administrator for his or her estate if all of the named executors cannot act.

An executor can now find out about “non-probate” assets such as the decedent’s bank accounts and life insurance that passed by beneficiary designation.

The form that was in the statute for a Transfer on Death Deed is gone. The Texas Supreme Court has a task force that is working to create one.  Don’t hold your breath, since it has been 5 years and nothing is yet on the horizon.  In the meantime, lawyers have been busy using their own forms.

Joint wills do not work.  Do not do one.

It is now cleared up:  when a married person with children from a prior marriage dies without a will, that person’s children inherit one-half of the community real property. Said another way – your step-kids will own one-half of your homestead if your spouse dies without a will.  There had been a bit of confusion about whether the split was one-quarter or one-half.

If your will was silent on handling digital assets, your executor can now get a court order granting access to them.

You now get a priority for reimbursement out of a probate estate for up to $15,000 for funeral expenses, and another $15,000 for expenses related to a last illness.  The old law allowed for only $15,000 combined for both.

There is now a procedure for terminating a lease early when a tenant dies.

At some point in the future, you may be able to be officially served with a lawsuit through social media. Question: do you think your friends will react with a “like” or a “dislike”?

The governor vetoed the big guardianship bill, so nothing to report on that front.

There were a few things that did not change, despite the best efforts of lobbyists. The Rule against Perpetuities still exists.  That law is somewhat confusing, but it basically sets a formula for an end date for any estate planning.   We also remain one of 5 states that has the archaic rule about a very important form:  for Medical Powers of Attorney that are executed in Texas, you still have to use the Texas statutory form.

And, finally, the Bowie Knife is still not the official Texas knife.

Virginia Hammerle is a licensed Texas attorney.  Her practice includes estate planning, litigation, guardianship and probate law.  See hammerle.com for her blog and newsletter sign-up.  This column does not constitute legal advice.