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Could one spouse remove the other spouse from a will?

On Behalf of | Sep 22, 2021 | Estate Planning |

Writing a will allows the testator to grant assets to a preferred beneficiary. The document also keeps assets out of the hands of those not favored by the testator. Sometimes, estate planning involves revising a will to remove a beneficiary from the document. Disinheriting an adult child is one thing, but disinheriting a spouse could lead to some challenges in a Texas probate court.

Disinheriting a spouse in Texas

Probate laws fall under the statutes of a particular state. Texas residents may discover that entirely disinheriting a spouse could prove challenging since Texas is a community property state. That means anything acquired by one spouse ends up shared equally with the other spouse. So, purchasing property in one’s own name during the marriage doesn’t mean the other spouse has no ownership rights.

That said, things procured before their marriage and controlled entirely by one spouse might escape community property rules. However, an attempt to leave a house that one spouse purchased during the marriage to another person could run into legal challenges. During probate, the surviving spouse may seek to maintain his or her co-ownership of such community property. If the property is separate, leaving the asset to another person might be possible.

Prenuptial and postnuptial agreements

Written prenuptial and postnuptial agreements become necessary to leave community property to someone else. A prenuptial agreement occurs before the marriage, and a postnuptial agreement comes afterward. These contracts may support a declaration in a will that leaves property to someone other than a spouse.

In estate planning, an essential step involves making sure the various documents are legal under state law. Besides the will, the testator would now need to make sure the prenup and postnup are both legal contracts.

The testator might run into trouble getting a spouse to sign a postnuptial agreement, though. If so, disinheriting a spouse might prove challenging.