Texas Estates Code § 123.001. Will Provisions Made Before Dissolution of Marriage

(a) In this section:

(1) “Irrevocable trust” means a trust:

(A) for which the trust instrument was executed before the dissolution of a testator's marriage;  and

(B) that the testator was not solely empowered by law or by the trust instrument to revoke.

(2) “Relative” means an individual related to another individual by:

(A) consanguinity, as determined under Section 573.022, Government Code ;  or

(B) affinity, as determined under Section 573.024, Government Code .

(b) If, after the testator makes a will, the testator's marriage is dissolved by divorce, annulment, or a declaration that the marriage is void, unless the will expressly provides otherwise:

(1) all provisions in the will, including all fiduciary appointments, shall be read as if the former spouse and each relative of the former spouse who is not a relative of the testator had failed to survive the testator;  and

(2) all provisions in the will disposing of property to an irrevocable trust in which a former spouse or a relative of a former spouse who is not a relative of the testator is a beneficiary or is nominated to serve as trustee or in another fiduciary capacity or that confers a general or special power of appointment on a former spouse or a relative of a former spouse who is not a relative of the testator shall be read to instead dispose of the property to a trust the provisions of which are identical to the irrevocable trust, except any provision in the irrevocable trust:

(A) conferring a beneficial interest or a general or special power of appointment to the former spouse or a relative of the former spouse who is not a relative of the testator shall be treated as if the former spouse and each relative of the former spouse who is not a relative of the testator had disclaimed the interest granted in the provision;  and

(B) nominating the former spouse or a relative of the former spouse who is not a relative of the testator to serve as trustee or in another fiduciary capacity shall be treated as if the former spouse and each relative of the former spouse who is not a relative of the testator had died immediately before the dissolution of the marriage.

(c) Subsection (b)(2) does not apply if one of the following provides otherwise:

(1) a court order;  or

(2) an express provision of a contract relating to the division of the marital estate entered into between the testator and the testator's former spouse before, during, or after the marriage.


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