What takes precedence, a will or a new marriage?

Question

My mother and father were married for 41 years, until 6 months ago when my mother passed away.  They had a will together that named my brother and I as heirs to their estate.  My father is now considering getting remarried, and I'm curious whether the will he has in place would take precedence, or whether his new wife and her children would stand to inherit half of my father's estate.

Geoffrey Germane · Answer

This is a very important question. Unless your father and his new wife execute a valid prenuptial agreement, his new wife can "elect against" his will and claim 1/3 of his estate. Her children would have no legal right to anything, but she would. I have seen situations like this wreak havoc on both the estate plan and the family, so careful and conscientious planning is advisable.

Roger Durkin · Answer

Unless the will is changed, it may effect the beneficial interest of the children. It is possible that the new wife will gain a benefit. Suggest you speak to an attorney.

James Weiner · Answer

Your father could not have a will "together" with your deceased mother because each would have to have their own will. However, a new wife could claim a dower interest in his estate.. and that might complicate things when he passes.. but her kids would not get anything unless your dad passed first and her interest in his estate was confirmed.  I would recommend that he has a prenuptual agreement prior to remarriage and that he redo his estate plan after marriage.

James Oberholtzer · Answer

This is not an easy question to answer.  In general, your father would be free to make changes to his plans to dispose of his property upon death. However, he may have made a contract to not change his Will when he made a mutual Will with your mother.  It depends on the facts of your situation.

Edwin K. Niles · Answer

The will takes precedence, but he should make a new one after marriage.

David Thomson Egli · Answer

California has a provision for an omitted spouse that applies when the decedent's testamentary instrument (will or revocable trust) was executed before marriage and doesn't provide for the spouse (unless the exclusion was intentional and this intention is set foth in the will).  If your father gets remarried and dies first without executing a new will, his new spouse would be entitled to 1/2 of the community property and quasi-community property belonging to your father and 1/3 of the separate property of your father.  The balance of his property would be distributed according to his will.  Nothing would go to the children of his new wife.  If the new wife dies first without providing for your father in her testamentary documents, he would be entitled to receive the same shares of her property.  Upon remarriage, if your father doesn't want the California omitted spouse rules to apply, he need to execute a new will or revocable trust.

Edward Armstrong · Answer

If what your parents signed was a "joint will" what they may actually have signed was part will and part contract. If it was actually a joint will is conceivable that you could enforce the contract against your father's estate? the theory behind this type of a suit would be that you and your siblings were third-party beneficiaries. This, I believe is a rather weak argument. If your father remarries and changes his will he is certainly able to disinherit his children because a parent is under no obligation to leave anything to his or her children. On the other hand, if he doesn't change his will and remarries, his new wife would have a right to take against his estate if she didn't like the provisions that he made for her in the new will or if he didn't change the old will to provide for her.

Christine James · Answer

The wife will get something if your father does not do a new will or a codicil to his existing will.  How much will depend on the extent of his property and how much longer he lives.  If your father does not want his new wife to inherit or wants to limit the amount she inherits, he needs to revise his will AFTER he gets married and mention his new wife in it.

Brian Haggerty · Answer

In Oregon, marriage revokes your will. So, yes, the new wife would inherit half, unless he makes a new will. For the record, it's your father's money, so if he wants to remarry that's up to him. He ought to do some estate planning before marrying though, and consider a pre-nuptial agreement, and make a new will.

Victor Waid · Answer

The will stands, but he will need to amend the will to include or exclude his new wife, or she will be entitled to make a claim on his estate.

Thomas Edward Gates · Answer

The "old" will of your father is still valid.  However, the new wife can challenge the will as the forgotten spouse.  He kids have no standing.

James Frederick · Answer

It is not clear. A great deal depends on how your father's assets are titled. A Will is not the best way to deal with this arrangement for a great many reasons, including the fact that a surviving spouse can elect to "take against the Will." This would result in your receiving substantially less of the estate, if anything at all.  On the other hand, if all of the assets designate you as beneficiary, then the Will is not relevant.  Best bet would be for your father and his fiance to execute a pre-nuptial agreement.

Dara J. Goldsmith · Answer

His old Will is valid, but his new wife is entitled to take a forced share of 1/3 in Nevada of his separate property.  He should use a trust to establish the rights the new wife has, if any, to his assets.  In Nevada if he marries and his probate assets are $100,000 or less they all go to the new wife even if he has a Will.  A prenuptial or postnuptial agreement are the only ways to avoid that.  I urge him to seek legal counsel before marriage on the impact of the marriage and his estate plan.  This information is only intended to give general information in response to an inquiry.  It does not establish an attorney client relationship.  This response is only based upon the limited facts presented and is merely intended to assist you in determining if you should contact an attorney to provide you with legal advice.

Maura Curran · Answer

A spouse is legally entitle to a share of the deceased spouses estate and under the Florida constitution give the surviving spouse at a minimum a life estate in the homestead.  However, a prenuptial agreement can set forth pre-agreed terms. Typically in second, third, etc., marriages and especially of an older couple, a pre-nup is signed in order for the children from each marriage to inherit that parents' estate. Your father should talk to an attorney to find out exactly what is in his best interest.

Jayne Sebby · Answer

If your father referrs to your late mother, your brother, and you by name in the will, you and your brother will inherit his estate.  If the will only refers to his "wife" and "children" the estate will be split between you, your brother, the new wife, and possibly her children.

Neil Lehto · Answer

Many lawyers strongly advise against making a joint will under which a husband and wife, for example, agree with each other not to make a new will later. If they had such a joint will, it may be enforceable by you and your brother. Otherwise, if they made separate wills, his would remain enforceable but his new wife would have claims against his estate.

Bernard H. Greenberg · Answer

The new spouse's rights are determined by state law and whether they have a marital agreement. For further information, consult with an attorney specializing in estate planning.

Ben Liu · Answer

If your father got everything in the will when your mother passed, he probably can change the will at any time.

James Maguire · Answer

It depends on how the wills were actually worded, but when your mother died, you and your brother inherited whatever she left to you in her will, and that won't change, even if the will has not been probated.  Your step-mother and her kids would not be entitled to any part of your  father's estate unless he revises his will to say that they do.

Norman Green · Answer

If your father does not make a new will, then his wife, if she survives him, would get one-third of all separate property.  (If they have some community property, then she would get all of that, but it sounds like they are not working any more.)

Mark T. Peters · Answer

Her children no, she may be entitled to her half of community property and possibly up to $60,000 (in Idaho) as her share of his separate property.  In this situation, with him having children and her having children, a pre-nup would be appropriate.  If he understands the need, have him consult with a local attorney about drafting one.

John Brennan · Answer

In Michigan, she will be untitled to one half of the estate if she survives him. See an estate planning attorney.

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