QUESTION
What does my dad have to do to ensure the will remains the same after he has remarried?
Asked on Feb 22nd, 2014 on Estate Planning - Louisiana
More details to this question:
My dad has remarried but wishes the will he wrote before getting married leaving his estate to his two children to remain the same.
20 ANSWERS
Corporate/Business Attorney serving Beachwood, OH
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Christine Sabio Socrates Attorney at Law
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That is fine to do, however he must realize that since is remarried, his new wife has a right to elect to take against the will. What that means is that she would be entitled to her statutory portion had he died without a will. If you father wants to make sure that his two children inherit his estate, he must do something more than just a will. He can execute a trust, can title his assets to pass to the kids after his death, or complete beneficiary designations. If his goal is to leave his estate to his children, he should consult with an estate planning attorney so they can make sure his goal is accomplished. Please let me know if I can be of assistance to you or your father.
Answered on Feb 26th, 2014 at 4:19 AM
Taxation Law Attorney serving Glendale, CA
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Irsfeld, Irsfeld & Younger LLP
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He must write a will that mentions his new wife. Ideally, it would say that he leaves her nothing or that she is not a beneficiary of the will. Who knows? There may be something that he wants to leave her, in which case that should be put in, and the disinheritance I describe above won't be necessary. For example, I give my wife the flower pot in my living room.
Answered on Feb 26th, 2014 at 4:18 AM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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He needs to contact his lawyer to have an amendment to the will mentioning the new spouse and what his intentions are as to her.
Answered on Feb 26th, 2014 at 4:18 AM
Edwin K. Niles
Any lawyer working in the field of wills can draft an affirmation/republication.
Answered on Feb 26th, 2014 at 4:17 AM
Litigation Attorney serving St. Louis, MO
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Probate Law Center Richard J. Keyes, PC
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The best thing to do is to see an attorney. In Missouri, his new wife can always take against the will and end up with part of his estate. Your father may have to do a post-nuptial agreement with his new wife and also a new estate plan.
Answered on Feb 24th, 2014 at 4:59 PM
2 Awards
He needs to meet with an attorney and amend his will to name his wife and state that he does not wish to provide for her. Otherwise the law will consider her UNINTENTIONALLY omitted and give her a good share of his property. Any community interest that is acquired during the marriage will still become her's however - you cannot change that unless a pre or post nuptial agreement is signed by both parties.
Answered on Feb 24th, 2014 at 4:59 PM
Estate Planning Attorney serving Nashville, TN
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Strickland Law, PLLC
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He should have sought advice prior to getting remarried. Absent a pre-nuptial agreement, the spouse cannot be disinherited in Tennessee. The surviving spouse can opt to take the elective share, which ranges from 10-40% depending upon the length of marriage. There are steps he could take, but he needs to seek advice from counsel.
Answered on Feb 24th, 2014 at 4:59 PM
Anna Tarasyuk
Anytime there is a a big life event, such as a remarriage, it is ALWAYS a good idea to have the existing documents reviewed and possibly revised if necessary. Since California is a community property state, a spouse has certain inheritance rights, which need to be addressed.
Answered on Feb 24th, 2014 at 4:58 PM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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If he doesn't make changes, it will remain the same. However, new wife may have some marital rights to his property. If they did not sign a pre-nup when they got married, they may want to consider doing so now.
Answered on Feb 24th, 2014 at 4:28 PM
Thomas Edward Gates
It can be left as drafted. However, his new spouse can plead forgotten spouse and could be awarded part of the estate. Best that the will be rewritten and, explicitly state that the new spouse is not to gain anything from his, prior to marriage, estate.
Answered on Feb 24th, 2014 at 4:27 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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This will not work. Upon marriage, your father's wife automatically has rights under Michigan law. The only way to change those rights is by pre-nuptial agreement or post-nuptial agreement. A Will can be challenged, and/or elected against by the spouse. The spouse would also be entitled to any jointly held property or assets designating her as beneficiary. Under Michigan law, the spouse could elect to take the first $125k, plus 1/4 of all remaining assets, regardless of what the Will says. This is something that your father *should have* addressed before getting married. At this point, his spouse will need to consent to just about anything that he does. He should meet with an estate planning attorney, as soon as possible to try to straighten this out.
Answered on Feb 24th, 2014 at 4:27 PM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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He needs to see an attorney, and understand the law and its effect after his remarriage.
Answered on Feb 24th, 2014 at 4:27 PM
I recommend that your father update his will since he has remarried. Even better, he should establish a trust and have his property transferred to the trust. The trust documents can name the beneficiaries and a successor trustee to take over after your father dies or becomes incompetent.
Answered on Feb 24th, 2014 at 4:26 PM
Commercial Attorney serving Chicago, IL
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Ashcraft & Ashcraft, Ltd.
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Your father's Will remains valid. His wife will have rights of renunciation of the Will that will allow here to claim 1/3 of the total estate. The balance of the estate will be divided proportionately in accordance with the terms of the estate. Specific bequests could be affected. If your father created a Living Trust the assets deposited into the trust during his lifetime would not be affected by the wife's rights of renunciation. You father would be in absolute control of the trust and could add and remove assets from the trust at any time.
Answered on Feb 24th, 2014 at 4:26 PM
Many states will not allow a spouse to be disinherited. Your father needs to see an Estate Planning Attorney to make the correct selection of documents to preserve the bequests for the children from the previous marriage.
Answered on Feb 24th, 2014 at 4:24 PM
Family Attorney serving Seattle, WA
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He needs to sign a will that reflects his current wishes.
Answered on Feb 24th, 2014 at 4:24 PM
Your father doesn't need to do anything. A will is effective until the testator voluntarily chooses to change it. However, some states permit a surviving spouse to inherit a portion of the estate automatically prior to distribution to the beneficiaries. If you father wants to avoid that, he should draft a new will or add a codicil to the existing will addressing this particular issue.
Answered on Feb 24th, 2014 at 4:24 PM
First, he doesn't change his Will. Second, he will need a Marital Agreement with his spouse. This is necessary in order for the spouse to waive her rights as surviving spouse. For more detailed information, he should consult with an attorney specializing in estate planning.
Answered on Feb 24th, 2014 at 4:23 PM
3 Awards
He needs to execute a new Will or get a pre or post nuptial. In Nevada, if the assets passing via Will are $100,000 or less they all go to the surviving spouse unless there is a pre or post nuptial agreement.
Answered on Feb 24th, 2014 at 4:19 PM
Probate Attorney serving New Orleans, LA
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James G. Maguire
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As long as he does not want to change the will, he does not have to do anything.
Answered on Feb 24th, 2014 at 4:17 PM