Dying is the last thing on most people's minds when they're planning a wedding. In most states, it doesn't have to be. Getting married after you write a will typically doesn't invalidate it. This isn't to say, however, that your wedding won't affect distribution of your estate, and the exact laws regarding such a situation can vary from state to state.
Getting married trumps the terms of your will, unless you live in Georgia -- the only state that allows one spouse to disinherit the other. All other states have laws in place to prevent your spouse from losing everything in the event of your death. If you marry and don't revise your will, or revoke it and draft a new one addressing your new spouse, she's a "pretermitted spouse" – the law assumes the omission was unintentional. She's therefore entitled to a share of your estate. Most states will give her the same percentage she would have received if you had died intestate, or without a will at all. Spouses are usually the first in line under states' intestate succession laws. She might receive everything if you have no children, she might have to share your estate with your parents, or – if you have children, particularly children from another relationship – she might have to divide your estate with them.
One exception exists to pretermitted spouse laws. In some states, if you wrote your will before you married, and if you stated in your will at that time that you didn't want your future spouse to inherit, she's not a pretermitted spouse. Unless you live in Georgia, however, she can still inherit from you. She can claim an elective share of your estate instead. She can notify the court that she doesn't like the terms of your will and that she'd rather accept a statutory percentage of your assets and property. She can even do this if you write her out of your will after you marry. A spouse's elective share is often similar to a pretermitted spouse's intestacy share, with similar rules.
Although probate law trumps your will after you're married, family law can trump probate law. If you and your spouse enter into a prenuptial agreement in which you state that you didn't mention your spouse in your will because that's an election the two of you chose, it will override laws regarding pretermitted heirs, elective shares and intestate succession. Your spouse has to sign the prenup with you, however. Without her signature, its terms are not legally binding.
Community Property States
The nine community property states have their own set of rules to protect your spouse if you marry after writing a will and fail to make a new one. Community property law works on the premise that both spouses equally own everything acquired after the date of the wedding, including purchases, wages and earnings, and retirement benefits. If you live in a community property state, your spouse will automatically receive her half of all your marital property when you die, regardless of the terms of your will. In fact, you can only bequeath your half of community property in your will – you can't give her share to anyone else.
Divorce typically doesn't invalidate your entire will either. In most states, it simply removes your spouse from the equation. If you create a new will after you marry, but then later divorce, courts in most states typically treat the situation as though she predeceased you. If you named her as executor, she can't serve. If you left her a percentage or even all of your estate, she can't receive it. Anything you bequeathed her would revert back to your estate to be distributed among your other beneficiaries.
- Boston Estate Planning: Does Marriage Invalidate or Revoke a Will?
- McIlveen Family Law Firm: Effects of Marriage, Divorce and Children on Your Will in North Carolina
- USLegal: Pretermitted Spouse Law & Legal Definition
- National Paralegal College: Intestate Succession Rules
- Clark Skatoff: Surviving Spouse Rights in Florida
- The Zucker Law Firm: State Law Differences Regarding Spousal Disinheritance
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