Open/Close Menu Divorce Done Differently.

Short Answer: YES!

Being wealthy isn’t the deciding factor when determining whether or not you need a will. Having a will, and other supporting documents, is about the relationships we have and a desire to make sure our loved ones are provided for. It’s a deliberate choice to make certain that things are not left to chance. This is especially true if you have young children. Having a will allows you to determine where your children will live and who will raise them in the event that both parents are deceased. It allows you to determine which grandparent, sibling, other family member or family friend will provide the best overall environment for your children to grow up in. That is a very powerful reason to have a will, regardless of your tax bracket.

Even if you don’t own a mansion or have a fat bank account, chances are you do own property that will need to be divided after you’re gone. The alternative to making these choices for yourself, is to allow the State of Texas to decide how things will be divided. In making these decisions, the State seeks to determine how a fictitious person, some theoretical average deceased person, would want his or her property divided. The problem with this approach is that your personal wishes are likely different from the plan that the State came up with. Take a look at how these common scenarios affect how the property of the “average” person will be divided.

Married with Children from a Prior Relationship

Anytime there is a blended family, the State’s division of property is often not what most people would want. The following scenario illustrates this point.

Hank and Wilma are happily married. Hank has two children from his prior marriage to Carrie. The couple makes a modest living and after years of saving, they bought a home together. Tragedy struck and Hank died unexpectedly. Since Hank did not have a will, the State will divide his property in the following way:

Since the home was bought during the marriage, it is community property. Wilma will retain her ½ community interest in the home, but will not get any of Hank’s ½ community interest in the home. Hank’s half will instead go directly to his children. This leave Wilma unable to take any actions in regard to the home without the approval of Hank’s children. This can cause problems for Wilma is a variety of ways. First, if the children are still minors, Carrie, as the children’s mother, will be the de facto trustee for the children’s inheritance (a situation Hank could have prevented with a will). This places Wilma in the position of having to get Carrie’s approval to do anything with the home. Stop and think about that for a minute, it’s a recipe for conflict.

Second, the children’s inheritance is wrapped up in the home. This will likely mean that they will want to sell the home in order to get their inheritance. If Wilma wishes to keep the home, she will need to buy their interest out through refinancing. Wilma may not qualify to refinance the home without Hank’s income. Again, Hank could have avoided this by leaving the house to Wilma in a will. The reverse situation can also occur. Wilma may wish to sell the home while the children wish to keep it for nostalgic reasons. Wilma will be unable to act without the children’s approval and another opportunity for conflict arises.

The home is the easiest example, but the same division will occur for all of Hank’s community property. This means the half of the money in all the bank accounts automatically goes to the children. While it is reasonable to think that Hank would have wanted some of his estate to go to his kids, it is highly doubtful that he would have wanted Wilma to lose half of the house and half of the money they had managed to save, but this how the Estates Code sorts out the estate. Having a will would have allowed Hank to determine how his property would be divided, and protect Wilma from serious problems with shared ownership of the home and property.

 Married with Step Children

In Texas, step children do not inherit from their step parents. This means that if you are a step parent who has raised and loved a step child as your own, the only way from them to inherit from you is to write them into your will.

The Well Meaning Spouse

In some relationships, all or most of the couple’s assets are in one spouse’s name. This can happen for a variety of reasons, such as one spouse having significantly better credit than the other. Regardless of the reason for the arrangement, it can cause serious problems for the surviving spouse if the couple’s assets, including the bank accounts, are solely in the deceased spouse’s name. The net effect of this situation is that the surviving spouse could be locked out of the couple’s bank accounts until he or she can assert a community property claim through the court to gain access.

Youngblood Law, PLLC is a Fort Worth, Texas family law firm that uses a holistic approach to help people get on with their new life by getting done with their old life.  We believe that having an up-to-date will package is part of any family law proceeding, and we offer a robust selection of testamentary and other documents our clients need to confidently move on with their new lives.  This essay is intended for educational use only, and is not a replacement for competent legal counsel.  If you are facing a family law matter, we recommend obtaining competent legal counsel like Youngblood Law, PLLC.  For more information, contact us at 817-601-5345, find us on the web at, or on your mobile device, open your browser and type in and press Go.

Paul Youngblood #youneedawill #lawfw #youngbloodlaw #somedayistoday #collaborativedivorce #beingdivorceddoesntsuck