In re Estate of Nash, 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 and the Supreme Court of Texas affirmed.
The court recognized that Probate 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 and that other will provisions remain undisturbed. Because
the alternative gift was 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].