The Texas Supreme Court has added another opinion in the debate of what happens when you forget to change your will after a divorce. Needless to say the best advice is to immediately pay a visit to your friendly neighborhood probate attorney and have him draw you up a new will, but I digress.
In re Estate of Nash involved a fight between the living heirs of Marvin Nash, and Marvin Nash’s ex-stepdaughter.
Marvin Nash executed a will while he was married to Vicki Nash and designated Vicki as his primary benficiary. However, he included a suvivor clause which stated that Vicki Nash had to survive Marvin by 30 days to inherit. In the event that his wife did not survive him by 30 days, the estate was left to Vicki’s daughter Shelley Tedder, Marvin’s step-daughter, as contingent beneficiary.
Marvin and Vicki Nash divorced on July 8, 2002. Nash later died, without revising his Will, on April 29, 2004. Both Vicki Nash and Shelley Tedder survived Marvin Nash.
After Marvin’s death, his heirs filed an application to administer his estate as though he had no valid will.
Conversly, Shelley Tedder filed an application to probate Marvin’s will.
Ms. Tedder relied on a provision of the Probate Code that states that “if after making a will, the testator is divorced… all provisions in the will in favor of the testator’s former spouse… must be read as if the former spouse failed to survive the testator…” Ms. Tedder argued that if you read the will as though Vicki predeceased Marvin, as the statute seems to suggest, she stood to take as the contingent benficiary.
Unfortunately for Ms. Tedder, the Supreme Court disagrees. The Court stated that Probate Code section 69 requires that only those provisions in a will that favor a former spouse be read as if she predeceased the testator. Since the contingent bequest to Ms. Tedder was not such a provision, section 69 does not govern the bequest.
Accordingly, Tedder did not take under the will, and Nash’s estate passed according to the laws of descent and distribution.