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.