November 2009 James M. Bright,Attorney at Law

The following is provided for informational purposes only and is not, nor should it be construed as legal advice.

            A common plan for after death distribution of assets in wills for married persons is to execute wills that are a mirror or near mirror image of their spouses will.  Common elements of those “mirror” wills might be:

  • Everything that I own goes to my spouse if they survive my death
  • If my spouse predeceases me then all property that I may own (inclusive of that which was inherited from my spouse) goes to children, grandchildren, trusts, etc.  (Note:  If the wills are “mirrors” of each other, the distribution would be the same, no matter which spouse dies first).

The question that sometimes arises is, “If my spouse remarries and makes a new will or otherwise revokes the mirror wills that we made together, can I be assured that the distribution that we agreed upon will be enforceable after my spouse’s death?”   The answer to that question will depend upon whether or not the will is a contractual will.

            A contractual will for purposes of this discussion is a Last Will and Testament that includes or is accompanied by an enforceable contract.  Normally, a contractual bequest may be changed, modified, varied or revoked only by an agreement in writing and signed by both parties to the contract.  Contractual bequests in the contractual will may not be changed or revoked after the first spouse has died.

            Prior to September 1, 1979, the question of whether a couple wished for their wills to be contractual in nature was a question of fact “to be determined by the jury or other fact finder.”  This could sometimes lead to unintended results.

            After September 1, 1979, this question has been answered by the Texas Probate Code §59A.  That statute established criteria for determining when the parties intended for the will to also be an enforceable contract.  Those criteria dictate that a contract “. . . can be established only by:

1.         Provisions of a written agreement that is binding and enforceable; or

2.         Provisions of a will stating that a contract does exist and stating the material provisions of the contract.”

            A binding contract in a will is normally used to ensure that gifts to heirs in the original will to care for children or grandchildren of the first spouse to pass are still honored when the second spouse passes.  This potential conflict may arise in a first or subsequent marriage, but it is commonly seen in the context of a “blended family.”

Assume for purposes of this article the facts recited below so that a comparison may be made between a non-contractual will and a contractual will.

·                    Husband “John” had three children from a prior marriage when he and wife “Jane” married.

·                    Jane had one child from a prior marriage.

·                    When Jane and John drafted their wills, each of them made the other sole beneficiary of the other’s estate with a contingent provision that when the second dies that the property remaining in the whole estate will be split into two equal parts with one-half passing to John’s three children and the other one-half passing to Jane’s child or other agreed distribution.

·                    At a time after the first spouse dies, the surviving spouse redrafts and thereby revokes his/her will and names his/her natural heirs as the only beneficiaries.

            By placing a contract in the will which meets the required elements of a contract including consideration, the contract can survive the redrafting or revocation of the will.  Caution must be taken to be certain that the contract language is specific enough to reflect actual material consideration and not merely a recitation that consideration exists.

            It must be understood that even though they are contained in the same document (i.e., Last Will and Testament), the contract may be enforced separate and apart from a will which is executed at a later date or under different circumstances.

            The purpose of this article is to point out what distribution of the joint estate of both spouses would be made under the above facts with and without a contractual will.  Each of these scenarios assumes each of the above recited facts and may vary if the facts are varied.

            If No Contractual Will:

If Jane predeceases John, his estate passes under a new will excluding Jane’s children.  The entire estate which exists at the time of John’s death will be split between his three children to the exclusion of Jane’s child.

  • If John predeceases Jane, her estate passes under a new will excluding John’s children.  The entire estate which exists at the time of Jane’s death will pass to Jane’s child to the exclusion of John’s children.

            If an enforceable contractual provision is in the Will:

If Jane predeceases John and John’s new will purports to pass the remaining estate to persons other than as originally agreed, the prior revoked will can be admitted into the probate proceeding as a contract to enforce the originally agreed upon distribution of one-half to each group of children.

  • If John predeceases Jane and Jane’s new will purports to pass the remaining property to only Jane’s child, the prior revoked will can be admitted into the probate proceeding as a contract to enforce the originally agreed upon distribution of one-half to each group of children.

            Blended families always create special problems and require additional planning, but even if the family is not a blended one, a potential conflict exists.  This potential is further compounded if the surviving spouse remarries.  Property that passes after the death of the second spouse to die may not pass as anticipated by the first spouse unless contractual provisions are included in the last will and testament.  This potential problem, like most will and probate problems, can be avoided completely if you seek the services of an attorney of your choosing who is experienced in wills and probate.

James Bright is admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas.  He maintains an office in Houston and by appointment another at 208 McCown Street

in the heart of historic Montgomery.  Contact may be made by telephone (936) 449-4455 or (281) 586-8277.  For more information about wills or probate in Texas, please see-


By:  James M. Bright