Underwriting Q&A: How does a divorce affect an appointment (e.g., an agent under a power of attorney) or beneficiary designation (e.g., a devise under a will)?

TEXAS

A: If a principal designates their spouse as an agent under a durable power of attorney, a subsequent divorce or annulment will terminate the agent’s authority under the durable power of attorney (unless the power of attorney specifically provides otherwise). See Texas Estates Code § 751.132. As for a Last Will and Testament, any Will provisions made before a dissolution of marriage will treat the former spouse and any relative of the former spouse (who is not a relative of the testator) as predeceasing the testator. This applies to fiduciary appointments, such as the appointment as independent executor, and to disposition of property. If the Will disposes property to an irrevocable trust: i) any power of appointment or beneficial interest conferred upon the former spouse or relative of the former spouse (who is not a relative of the testator) is treated as being disclaimed; and ii) the former spouse or relative of the former spouse (who is not a relative of the testator) will be treated as predeceasing the testator in regards to nominations to serve as trustee or other fiduciary capacities. See Texas Estates Code § 123.001. As for a Revocable Trust, the dissolution of marriage revokes a provision in a trust instrument that was executed by a divorced individual as settlor prior to the divorce. This applies to a revocable disposition of property or power of appointment to a former spouse or relative of the former spouse (who is not a relative of the testator) and the disposition or appointment is treated as being disclaimed. For any fiduciary appointments, the former spouse or relative of the former spouse (who is not a relative of the testator) will be treated as predeceasing the settlor. See Texas Estates Code § 123.052-123.053.