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A last will and testament (or, simply, a will) is among the most crucial elements of an effective estate plan. In most cases, married couples tend to create their estate plans and wills together to ensure they are on the same page about how their individual and shared assets will be distributed after each spouse dies.
However, nothing in Texas law prevents a spouse from creating a will without the other spouse’s knowledge. While it can be hurtful for a husband or wife to learn that their partner has done this, it is also essential to remember that marriage offers several protections for widows and widowers when it comes to community property. Here is what you need to know about how Texas law outlines spouses’ rights in the context of wills.
What Are the Requirements for a Valid Will in Texas?
For a will to be considered valid in Texas, it must meet specific legal requirements. The testator (the person making the will) must be at least 18 years old, of sound mind, and have the intent to create a will. The will must be in writing, signed by the testator or someone else at their direction and in their presence, and attested to by two credible witnesses who are 14 years or older and not beneficiaries of the will. A will that meets these requirements is legally binding and enforceable in Texas, even if the testator does not inform their spouse about it.
Can My Spouse Exclude Me from Their Will?
While a spouse can create a will without the other spouse’s knowledge, they cannot wholly exclude their spouse from inheriting. Texas law provides certain protections for surviving spouses, particularly when it comes to community property. If a spouse attempts to disinherit the other spouse in their will, the surviving spouse may still be entitled to a portion of the deceased spouse’s estate under Texas’s community property laws. However, a spouse can choose to exclude the other spouse from inheriting their separate property.
What Is Community Property?
Texas is a community property state, meaning most property acquired during a marriage is considered to be owned equally by the two spouses, regardless of who earned the income or whose name is on the title. Upon the death of one spouse, the surviving spouse is entitled to their one-half interest in the community property. The deceased spouse can only distribute their one-half interest in the community property and their separate property through their will. However, even in such cases, the surviving spouse may be able to contest the will to recover the other half-interest.
Does a Prenuptial Agreement Affect a Will?
A prenuptial agreement (also known as a premarital agreement or a prenup) can affect the distribution of assets outlined in a will. If a couple has a valid prenuptial agreement that specifies how their property will be divided upon death, the terms of the agreement will generally supersede the provisions of a will. However, for a prenup to be enforceable in Texas, it must be in writing, signed by both parties, and entered into voluntarily after full disclosure of each party’s assets and liabilities.
Contact an Experienced Texas Estate Planning Attorney Today
At the Law Office of Carey Thompson, PC, we understand the confusion, concern, and potential sense of betrayal that can arise when you discover or suspect that your spouse has created a will without your knowledge or involvement. As a dedicated estate planning and probate law firm serving the Dallas-Fort Worth area and greater Tarrant County, we are here to provide the guidance and support you need during this challenging time.
Our compassionate legal team, led by experienced advocate Carey Thompson, recognizes the sensitive nature of these situations and is committed to providing personalized attention and informed representation tailored to your unique circumstances. We take the time to listen to your concerns, answer your questions, and help you understand your rights and options under Texas law.
Whether you’re seeking to contest the validity of your spouse’s will, protect your rightful share of the estate, or simply gain clarity on the legal implications of your spouse’s actions, our knowledgeable attorneys are here to guide you through the process. We have the skills and experience necessary to aggressively negotiate on your behalf and ensure that your interests are protected.