Wills – What if Your Spouse is Omitted ?

OMG !!! – I got married and forgot to change my will to add my new wife!

Will Definition

What if Your Spouse is Omitted – A Will is a written document which states to whom a person’s belongings, money and property are to be given upon death.   A Will is typically effective upon a person’s death and can be changed or replaced any time as long as the Will maker is mentally competent.  People who die without wills are said to die “intestate” so their money and property passes under the laws of intestacy.  Refer to my blog on “passing without any will.”

With a will and with trusts, there is a distinction between separate and community property.  The law regarding wills and trusts and divorces involves classifying property as “separate property” (what you had before you married or what you inherit) and “community property” (what you acquire during marriage from working and investing community funds).  Each person has a legal right to make a will or trust giving instructions about what to do upon death of his or her separate property and his or her half of the community property.  Community property is by definition owned ½ by the husband and ½ by the wife.

You can will your property to whomever you want

Thus, there is no law that a wife has to leave her separate property and her portion of community property to her husband and vice versa.  The maker of the will chooses to whom his or her property is to be given.

Damn!!! – I got married and forgot to change my will to add my new wife!

Omitted spouse concept

If a person is married after he/she has already made his or her will, the law presumes that the spouse is to get a statutorily specified share.  In other words, if Joe and Jane are married on day 1 and the next day Joe dies without changing his will, Jane gets a portion of his estate because the law presumes that he would have wanted her to have a portion of his estate.   So it is not necessary to go right out and amend your will immediately after you are married.  Persons who are registered domestic partners are treated the same as spouses as are “putative spouses”.  The latter is a term referring to a person who enters into an invalid or non-existent marriage believing in good faith that the marriage is valid.

Wills should be reviewed after marriage

Wills should be reviewed after marriage in all cases to see what the possibilities are.  Particularly in the second marriage situation, spouses may not want to leave it all to the new spouse.  This is especially true if there are children from prior marriages that the will maker wants to provide for.  This is known as the “blended family” and that needs to be carefully thought through as to who gets what.  We have custom prepared many wills and trusts for blended families and can suggest practical ways to handle most any situation and concerns so as to avoid future litigation.

To omit a spouse from the will or trust

To omit a spouse from the will or trust, certain steps are required to overcome the presumption that you want to include your spouse. The intent to not provide for the spouse (i. e. to disinherit the spouse) must be clearly written in the will of trust.  Another way to keep the surviving spouse is to have clear evidence that the surviving spouse was given money or property in lieu of taking under the will or trust. Still another way is for the spouse to sign a waiver of his/her right to share in the spouse’s estate but waivers are inadvisable and can be set aside unless the spouse has independent legal counsel and is proven competent