Estate Planning After Divorce or the Death of a Spouse

Reviewed by Turner Henington, attorney, Texas Bar No. 24148206 · Updated October 2026

Divorce and the death of a spouse are two of the most common reasons people call us, and they raise the same core problem: almost every document you signed during the marriage named your spouse, as the person who inherits, the executor, the agent under your power of attorney and the person who makes medical decisions for you. Henington Lewis Law Firm PLLC helps people in Austin and Travis, Williamson and Hays Counties clean that up and build a plan that fits life now. Our attorneys also handle probate, so if your spouse has died we can take care of both at once.

What Happens to Your Estate Plan After a Divorce in Texas?

Texas automatically cuts your ex-spouse out of much of your old plan, but not all of it, and what’s left can leave gaps.

While the divorce is still pending, your spouse is still your spouse. If you become incapacitated and haven’t signed a medical power of attorney, your spouse is first in line to make medical decisions for you (Health & Safety Code § 313.004). Most divorce courts also have standing or temporary orders that limit changing insurance beneficiaries or moving property until the case is over. Ask your divorce lawyer what you can change now. In many cases you can sign a new will, a new power of attorney and a new medical power of attorney right away.

What to Do After Your Spouse Dies

The first weeks after a death are about family, not paperwork. When you are ready, here is what usually needs to happen, and how it depends on how things were owned:

This is also where people search for how to remove a deceased spouse from a deed. You don’t edit the old deed. You record the document that moved title to you: the survivorship agreement, the trust paperwork, the affidavit of death, the probate order or the affidavit of heirship. We do this as part of our probate work.

Tax steps a surviving spouse shouldn’t miss

• Step-up in basis on both halves of community property. When a spouse dies, federal tax law generally resets the cost basis of both halves of community property, not just the deceased spouse’s half (Internal Revenue Code § 1014(b)(6)). Selling an appreciated house or stock after a death can mean much less capital gains tax. Get date-of-death values.
• Portability of the unused estate tax exemption. Filing a federal estate tax return for your spouse can preserve their unused exemption for you. If no return was otherwise required, the IRS generally allows up to five years to file just for this purpose. This matters if your combined estate could approach the $15 million per person exemption.
• Inherited retirement accounts. A surviving spouse can usually roll a spouse’s IRA into their own, which is often the best choice, but not always. Decide before you move money.
• Disclaimers. If you don’t need something you inherited, a qualified disclaimer, generally within nine months, can let it pass to your children instead. Ask before you use or move the property.

Your New Estate Plan: What It Should Include

Planning for Remarriage

If you remarry, your new spouse picks up rights under Texas law, including the right to live in your homestead for life if you die first, and a share of your separate property if you die without a will. If you want what you built, or inherited from your late spouse, to go to your children, plan before the wedding. Our page on estate planning for blended families explains how.

Mistakes We See After a Divorce or a Death

• Assuming the divorce decree updated the 401(k) or life insurance beneficiary.
• Leaving an ex-spouse as guardian of a minor child’s inheritance by default.
• Selling the house before getting date-of-death values for the step-up in basis.
• Missing the window to elect portability of a late spouse’s estate tax exemption.
• Remarrying with an old will that leaves everything to “my spouse.”
• Waiting months to retitle a house, then finding it needs a court proceeding.

Who Will Prepare Your Plan

Turner Henington and Samantha Lewis founded Henington Lewis Law Firm, and one of them works on every plan we write. Turner is a former KPMG tax accountant and a graduate of The University of Texas School of Law. Samantha has nearly a decade of experience in Texas and federal courts and handles estate disputes, so she drafts with an eye to how plans get challenged. Our office is at 1101 S. Capital of Texas Hwy, Bldg G, Suite 150-C, near West Lake Hills, and we also meet by phone and Zoom.

What Our Clients Say

Divorce, Widowhood and Estate Planning FAQ

Does divorce automatically revoke my will in Texas?

No, not the whole will. Texas law reads your will as if your ex-spouse and their relatives died before you, so they don’t inherit or serve as executor, but the rest of the will stays in effect. It’s usually best to sign a new will.

Is my ex-spouse still the beneficiary of my 401(k) after the divorce?

Possibly. Texas law cancels many pre-divorce beneficiary designations, but many employer plans are governed by federal law, which can require the plan to pay whoever is on the form. Change the beneficiary form with the plan yourself.

Can I change my will while my divorce is pending?

In many cases, yes. Most divorce standing orders limit changing insurance beneficiaries or transferring property, but a new will, power of attorney and medical power of attorney are often allowed. Check with your divorce lawyer first.

How do I remove my deceased spouse from the deed to our house in Texas?

You record the document that transferred the house to you, such as a community property survivorship agreement, an affidavit of death for a transfer-on-death deed, trust documents, a probate court order or an affidavit of heirship, along with a death certificate where required.

Do I need probate after my spouse dies?

Not always. If everything was in a living trust, held with survivorship or passed by beneficiary designation, you may not need probate. If the house or accounts were in your spouse’s name alone, you may need title probate (muniment of title), probate with independent administration or an heirship proceeding.

Do I get a step-up in basis on our house when my spouse dies?

Usually on both halves. Federal law generally steps up the basis of both halves of community property when one spouse dies, which can greatly reduce capital gains tax if you later sell. Talk to your tax advisor before selling.

What is portability and do I need it?

Portability lets a surviving spouse keep a deceased spouse’s unused federal estate tax exemption by filing an estate tax return. It matters if your combined estate could approach the $15 million per person exemption, or might grow toward it.

Who should I name as my agent and executor now?

Someone you trust who is organized and willing, often an adult child, sibling or close friend, with a backup. You can name different people for money, medical decisions and your estate.

How much does it cost to update my estate plan after a divorce or death?

Every plan is a flat fee, quoted in writing after a free consultation. If your spouse has died, we can also give you a written flat-fee quote for the probate or trust administration.

Sources and Texas Law Cited

The legal and tax statements on this page are based on the primary sources below. Laws and figures change, and this page was last reviewed in October 2026. This page is general information, not legal advice for your situation.

• Texas Estates Code § 123.001 – Will provisions made before dissolution of marriage
• Texas Estates Code § 123.052 – Revocation of nontestamentary transfers on divorce
• Texas Estates Code § 751.132 – Termination of agent’s authority
• Texas Family Code § 9.301 – Ex-spouse as life insurance beneficiary
• Texas Family Code § 9.302 – Ex-spouse as beneficiary of retirement and financial plans
• Texas Health & Safety Code § 313.004 – Surrogate consent for medical treatment
• Texas Estates Code ch. 112 – Community property with right of survivorship
• Texas Estates Code ch. 201 – Descent and distribution
• Egelhoff v. Egelhoff, 532 U.S. 141 (2001) – Federal ERISA law and beneficiary designations after divorce
• 26 U.S.C. § 1014 – Basis of property acquired from a decedent (including § 1014(b)(6) for community property)
• 26 U.S.C. § 2010 – Unified credit and portability
• IRS Rev. Proc. 2022-32 – Late portability election up to five years
• IRS Rev. Proc. 2025-32 – 2026 estate, gift and GST exemption ($15 million) and annual exclusion ($19,000)
• IRS Publication 590-B – Distributions from IRAs (inherited IRAs and the 10-year rule)
• 26 U.S.C. § 2518 – Qualified disclaimers

Keep Reading

• Estate Planning for Blended Families
• Estate Planning for Retirement
• Estate Planning for Married Couples
• Does a Surviving Spouse Need Probate in Texas?
• What to Do After Someone Dies in Texas
• When Should You Update Your Estate Plan?
• Texas Affidavit of Heirship
• Austin Probate Attorney
• Austin Estate Planning Attorney
• Estate Planning for Every Stage of Life