For individuals who enter their first marriage with a will or are remarrying with an existing will in place, it is important to consider what impact, if any, marriage will have as to the validity and effect of a will. Primarily, the law regarding what impact marriage will have on an existing will varies by state, consisting of three main areas of differing laws.
The vast majority of states allow a spouse who was not included in a will made before marriage to receive an intestate share of their spouse’s estate, or in other words the excluded spouse would receive the same amount of his or her spouse’s estate had the deceased spouse not left a will. In states with pretermission laws which allow an excluded spouse to assert their portion of the will. In this case, the intestate share will vary based on the number of heirs the deceased spouse left and the number of beneficiaries named in the will. As a general rule, a spouse’s intestate share typically involves the excluded spouse receiving a third to half of the estate.
In a small minority of states, a will is revoked by the subsequent marriage of the testator and the birth of a child between the couple. In some circumstances the will not be revoked if the will shows a clear intent that it would should not be revoked by subsequent marriage or was drafted under circumstances that were in contemplation of the marriage and the will intentionally meant to exclude the spouse. Lastly, the revocation will not occur if a prenuptial agreement provides that the spouse be to have no rights in the spouse’s estate will provide grounds not to revoke a will.
No Effect States
In a handful of states, marriage does not affect wills made before marriage. Under these circumstances, marriage does not revoke a will, wholly or partially, and will be honored as written even if it fails to name a spouse as a beneficiary. In these states it is presumed that the testator’s intent should override any changes in circumstances, assuming that the testator would amend his or her will if the spouse were, in fact, intended to be included as a beneficiary.
Given the variety of laws concerning the impact of marriage on pre-existing wills, it is important to consider what effect marriage will have an existing estate plan and if any alterations to this plan will be required to accommodate a new spouse’s role in the estate plan.