What will happen to my mother's will if she remarries?

Question

My mother is getting remarried after being widowed. Does her valid will still control the distribution of her assets when she is deceased, or does her new spouse automatically receive part of her estate?

Thomas Phipps · Answer

In Missouri, the spouse can claim a share of the estate under the statutes. She can hang her will to provide that the spouse gets a different amount, or nothing.

John Brennan · Answer

It depends on her estate planning and the laws of the state of her residence.

Christine James · Answer

This is a tricky question.  Initially the old will controls.  As time goes on he may gain a community property interest in her current assets and will have a community property interest in her income.  She may also choose to change her will to include her new husband.  It is really hard to say where things end up after she is gone.  At James Law Group we make every effort to respond to you quickly and efficiently.  This means we may be responding to you from a mobile device.  As you know, responding on these devices can result in typographical errors that my otherwise not occur.  In order to provide this extra service, please be aware of this and excuse any errors that may be caused by responding in this forum.    The content of this message is protected by attorney-client privilege.

Jayne Sebby · Answer

Her will controls what happens to the assets of her estate.  In some states, a surviving spouse and any minor children can claim a small percentage of the decedent's estate by statute.  If a beneficiary is named only by relationship, such as "husband," her husband at the time of her death will inherit, even if a previous husband was intended.

Jeffrey Strickland · Answer

In Tennessee, the Will will be valid, but the new spouse will have rights to take via elective share, etc. if she predeceases him. Depending upon her goals for the assts accumulated in her life, it is wise that she consider an antenuptial agreement (pre nup), which should include language as to what happens if they divorce.

Victor Waid · Answer

Your mother should contact an estate planning attorney to amend her will which will acknowledge the fact of her remarriage and can exclude her new husband, or make some distribution for him. Don't delay, as you do not know what tomorrow will bring.

Christine Socrates · Answer

She should have a new will written up and executed to reflect her new spouse.  Either way, the new spouse can choose to take against the will which means that he can choose to take his statutory share under the probate laws in that jurisdiction.

Brian Haggerty · Answer

Marriage revokes a will. Your mother should make a new will. Her new husband will have a right to a "spousal elective share" if he chooses. Your mother and her new husband could agree to make a coordinated estate plan with provisions for their separate families. If your mother does not make a new will, her new husband will inherit half.

Thomas Edward Gates · Answer

In Washington, we are a community property state, thus all property gain while married is deemed community property.  Each spouse can distribute their half of the community property as they wish.  Property brought into the marriage and kept separate is deemed personal property and the individual may distribute their personal property as they wish.  In the case here, there is no need to redo a will at the time of marriage, but may be done later after property comes into the estate.

Mark T. Peters · Answer

The will controls, although the  spouse may be entitled to up to $60,000 of the estate.  Mom should get a prenup to avoid this.

James Frederick · Answer

The answer is potentially yes to both questions. A surviving spouse has a number of options under Michigan law. The BEST thing for your mother to do is to get to her lawyer and clarify her intentions. She can also enter into a pre-nuptial agreement with her fiance, and that will preserve your inheritance.  The spouse would have certain rights, even if the Will is not redone. These would depend in part on the nature of the assets and how title is held.  Your mother should see her lawyer, so none of this is left to chance.

Frances Headley · Answer

When a person remarries, it is best if a new will is drawn up to answer everyone's questions. If no new will, then the new husband would be entitled only to the community property accumulated during their marriage.

Norman Green · Answer

If her will does not mention him and she does not make a new will or codicil, then he gets any community property and either half or a third of separate property, depending on how many children she had.

Dara J. Goldsmith · Answer

Unless she makes a new Will, her new husband automatically gets a portion.  She should speak with an estate planning attorney, or consider a prenuptial agreement, to make sure she understands what will happen in the event of her death.

Georges Shers · Answer

I assume this is in California where community property laws exist. The Will remains in effect as to any of her private property [pre-martial] not commingled with the community property. One half of her share of the community property goes to her husband and the other half passes by the terms of any Will that exists.

Bernard H. Greenberg · Answer

The new spouse may have rights to elect against her Will. She should visit with an attorney specializing in estate planning for more detailed advice.

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