Anaya Nolan
Marriage is a legally binding contract that can have a significant impact on one's assets and property ownership. In the context of a will, it is essential to understand how marriage, including common-law marriage, can influence the distribution of one's estate after death. While marriage itself does not invalidate an existing will, it can trigger certain rights for a surviving spouse, potentially overriding the provisions of the will. This dynamic interplay between marriage and wills underscores the importance of estate planning, especially when it comes to protecting one's assets and ensuring that their wishes are honoured after their demise.
| Characteristics | Values |
|---|---|
| Does a will supersede common-law marriage? | No, a will does not supersede common-law marriage. |
| Does marriage override a will? | No, marriage does not invalidate an existing will. However, a surviving spouse has rights to elect against a will. |
| Does a will supersede beneficiary designations? | No, a will does not supersede beneficiary designations. |
| Does a will supersede a power of attorney? | Yes, a will supersedes a power of attorney. |
| Does a will supersede a divorce decree? | No, a will does not supersede a divorce decree. |
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What You'll Learn
Marriage doesn't invalidate an existing will
Marriage does not invalidate an existing will in most, if not every, state. However, it is essential to understand that marriage laws vary by state and country. In some jurisdictions, such as England and Wales, any pre-existing will is revoked upon entering a legally binding marriage contract. This means that the will is treated as if it never existed, and the estate will be distributed according to the laws of intestacy, which may favour the new spouse over children from previous relationships.
To avoid this, it is recommended to update your will after marriage to reflect your changed circumstances. While you can create a new will after marriage, this may leave you without a valid will for a period of time. Alternatively, you can make a will "in contemplation of marriage," which remains valid after the wedding.
It is worth noting that a surviving spouse usually has specific rights, such as elective share rights to the overall estate, even if they are not named in the will. This can be a concern, especially in second marriages, and highlights the importance of careful estate planning with the help of a qualified attorney.
In summary, while marriage does not automatically invalidate an existing will, it can significantly impact the distribution of your estate and the rights of your surviving spouse and children. Therefore, it is crucial to seek legal advice and update your will accordingly to ensure your wishes are respected.
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Surviving spouses have rights to elect against a will
Marriage does not invalidate an existing will. However, in most states, a surviving spouse has rights to elect against a will, meaning that they would have some rights to the estate even if they are not included in the will. This is known as an elective share, and it is intended to prevent disinheritance, achieve fairness, prevent surviving spouses from becoming dependent on government support, and reflect a state's public policy that a surviving spouse should not be treated worse than if they were divorced.
The amount of the elective share varies depending on the state and the length of the marriage. In Michigan, for example, a surviving spouse may elect to take 1/2 of the sum or share that would have passed to them had the deceased spouse died without a will. In Ontario, the surviving spouse has the right to choose between accepting their entitlement under the will or claiming an "equalization payment" representing an equal sharing of the "marriage spoils". In some states, the elective share is tied to the number of years the couple has been married, with longer marriages resulting in a larger spousal elective right.
To receive their elective share, the surviving spouse must take certain actions, such as filing a petition with the court within a specified time frame, typically within 9 months of the decedent's death. The surviving spouse may also have a right to receive a year's support allowance and to claim certain personal property, such as a vehicle. It is important for the surviving spouse to seek legal advice to understand their rights and the implications of their election.
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Elective share rights for surviving spouses
In most states, a surviving spouse has elective share rights, which entitle them to a portion of their deceased spouse's estate, even if they are not included in the will. This is because marriage does not invalidate an existing will, and a surviving spouse cannot be involuntarily disinherited.
Elective share rights are designed to prevent a deceased spouse from disinheriting the surviving spouse and to ensure the surviving spouse's right to receive a fair share of the estate, increase accessibility to property, and prevent the surviving spouse from financial ruin. The amount of the elective share varies by state and can be a fixed amount, a percentage, or the amount the surviving spouse would have received if the deceased spouse had no will. In some states, the elective share amount is one-third to one-half of the deceased spouse's estate, while in others, like Montana, it can be up to 100% based on the length of the marriage.
To secure their elective share rights, a surviving spouse must take steps to assert their claim within a certain time frame. This may involve seeking legal advice from an estate planning attorney or retaining a probate or estate litigation attorney, especially if there is no prenuptial or postnuptial agreement in place. The surviving spouse should ensure that their claim is timely and in the right form, as a lack of timely action or an improper claim can result in a waiver of their elective rights.
It is important to note that there may be events that disqualify a surviving spouse from claiming their elective share, and making the election may disclaim all rights to certain assets that could have been inherited otherwise. Therefore, it is recommended to weigh the pros and cons before filing and to consult with an experienced attorney to understand the specific state laws and regulations regarding elective share rights.
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Common law principles and separate property
Common law is the dominant legal system in the United States. However, nine states have adopted community property laws, with three additional states being "opt-in" states. In these states, community property is the default characterization of all marital assets. This means that all property acquired during marriage is considered community property unless established as separate property.
Community property is defined as property that both spouses share equally, regardless of which spouse acquired the property or was responsible for the income. This includes tangible assets, such as cars, real estate, and fine art, as well as intangible assets, such as patents and trademarks.
In contrast, the common law property system states that property acquired by one member of a married couple belongs solely to that person unless the property is specifically put in both spouses' names. This distinction becomes important in wealth management and estate management following a divorce or the death of a spouse.
The community property estate may be terminated by the death of one spouse, a change in domicile to a common law state, divorce or legal separation, or physical separation.
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Marriage and asset distribution
Marriage does not supersede a will, and a new will should be drawn up if a couple wishes to change how their assets will be distributed. In most states, a surviving spouse has rights to elect against a will, meaning that they would have some rights to the estate even if they are not mentioned in the will.
In the US, marital property refers to assets acquired during a marriage, which are subject to division in the event of divorce or death. In common law states, property acquired by one spouse is considered their sole property unless the deed or title includes both spouses' names. In community property states, assets acquired during a marriage are considered community property, belonging to both spouses. These states include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
In the case of divorce, a prenuptial or postnuptial agreement can be put in place to outline how assets will be distributed. This agreement can also be put in place before marriage. In the absence of a will, separate property will be distributed according to the intestate statute.
Physical assets such as cars, real estate, and artwork are subject to common law or community property rules. Intangible assets such as patents, trademarks, and leases are also included in these rules, although they are more commonly associated with companies than individuals.
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Frequently asked questions
Marriage does not supersede a will. Only the revocation and destruction of a prior will or the drafting of a new will supersede an existing will.
In most states, a surviving spouse has rights to elect against a will, meaning that they would have some rights to the estate even if they aren't in the will.
In Florida, any gifts to a spouse in a will are presumed to be null and void after a divorce, unless the will is updated to reaffirm the gift.
A will does not supersede beneficiary designations. Retirement accounts, life insurance policies, and investment accounts often allow you to designate a beneficiary. If no beneficiary is named, the assets will be governed by your will.
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