In re Estate of Nash, 164 S.W.3d 856 (Tex. App.—Beaumont 2005), aff'd, 220 S.W.3d 914 (Tex. 2007).
Testator’s will left his entire estate to Wife, but if Wife failed to
survive him by thirty days, to Step-Daughter. Testator later divorced
Wife but did not change his will. Wife outlived Testator by more than
thirty days. The trial court determined that Step-Daughter was entitled
to Testator’s estate because under Prob. Code § 69, Wife is treated as
predeceasing Testator because of the divorce. Thus, the condition of
Step-Daughter’s gift was satisfied, that is, legally, Wife did not
outlive Testator by thirty days.
The appellate court reversed. The court recognized that Prob. Code § 69
provides that the divorce causes the will to “be read as if the former
spouse failed to survive the testator.” However, the court explained
that this reading of the will is only with respect to provisions “in
favor of the testator’s former spouse.” Because the alternative gift is
not to Wife, Wife is not legally dead with respect to the condition on
Step-Daughter’s gift. Since Wife was biologically alive thirty days
after Testator’s death, the condition on Step-Daughter’s gift was not
satisfied. Testator’s will lacked another alternative gift and thus
Testator’s estate passed by intestacy to his mother and brother.
Moral: A testator who makes a testamentary gift to a spouse should
include express instructions in the will regarding the disposition to be
made of that property if they are later divorced paying particular
attention to gifts that are conditioned on the spouse predeceasing the
testator. Alternative gifts, unless to individuals who would also be
ex-relatives whom the testator would not want to benefit if a divorce
occurred, should state, “If [primary beneficiary] does not survive me by
[number] days or is otherwise unable to take under this provision of my
will, I leave this property to [alternative beneficiary].
Comment: The court may have been attempting to reach the result it
thought Testator would have wanted because relationships between former
stepchildren and stepparents are problematic. I wonder if the same
result would have been reached if the alternative gift had been to one
of Testator’s relatives or a charity.