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This common estate planning secret leads to probate nightmares

When you die, your property mostly passes to your immediate family. The closer your relationship, the more property the other party will likely inherit. Given that Texas is a community property state, spouses often have the strongest inheritance rights when someone dies.

Most married couples take comfort in the idea that their spouse will receive a significant portion of the property from their estate. However, not everyone enjoys a happy marriage. Some people remain in a marriage that makes them unhappy because of financial or religious reasons. However, they plan to get revenge by disinheriting their spouse.

They keep this intention a secret and create estate documents that they believe will give them their revenge. What they don’t realize is that disinheriting a spouse often leads to messy probate proceedings.

Disinherited spouses may want to go to court

When someone knows that they have certain legal rights and that the estate documents left by their spouse violate those rights, they may go to court. If the spouse challenges the legality of the will that effectively strips them of any inheritance rights, the Texas probate courts are likely to rule in their favor.

However, the alternate beneficiaries that you named in your documents may fight intensely to protect their inheritance, leading to a lengthy and expensive probate dispute. Those hoping to disinherit a spouse cannot do so through surprise and will actually need to discuss the decision with their spouse ahead of time if they want their plans to be effective.

Marital agreements and trusts could achieve your goals

Some spouses will actually cooperate with a disinheritance because they know they have enough resources to provide for themselves if anything happens to their spouse.

If your spouse agrees to sign a postnuptial or prenuptial agreement eliminating their claim to certain assets, those contracts could help you achieve your estate planning goals. You could also potentially transfer property into a trust, but any assets that would be marital property would likely require your spouse’s approval prior to the transfer taking place.

When you understand what you can and cannot do with your estate plan, you are in a better position to draft documents that reflect your values and your relationships. Creating and updating Texas estate planning documents requires careful consideration on the part of the testator.