Does a will executed prior to 2nd marriage need updating?

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Latest post 10-03-2009 6:22 AM by OhioCP. 4 replies.
  • 09-24-2009 3:31 PM

    Does a will executed prior to 2nd marriage need updating?

    My Father's will was written within a few weeks of my Mother's death about five years ago. His intention is for all of his estate to be distributed to his (and my Mother's) three adult children, myself and my two siblings.

    Within the year following my Mother's death, my Father remarried.  His second wife was married twice before, once divorced and then widowed.  She has three adult children from her first marriage and one adult step-daughter from her second marriage.

    My Father's will opens with "I am widowed and have not remarried."  My Father and his second wife have made statements that they 'still' intend that each of their assets are to go to their respective children.

    Does my Father (and his current wife) each need to update their wills to address the fact that they have married?  Just so that each of their wishes are carried out? 

     

     

  • 09-24-2009 5:18 PM In reply to

    Re: Does a will executed prior to 2nd marriage need updating...

    Even if both spouses have wills leaving everything to their respective children, most states have laws that allow a surviving spouse to elect against the will if the surviving spouse is not included in it.  It would probably be a could idea for both your father and his wife to meet with an estate planning attorney to ensure that their wishes are carried out via the appropriate planning.

  • 09-25-2009 8:48 AM In reply to

    Re: Does a will executed prior to 2nd marriage need updating...

    Odds are by law each as new spouse has a right to elect some statutory share of spouses estate if spouse passes first.  So if say Dad passes and  SM rethinks her needs or her kids successfully lobby her to rethink her needs then SM could well insist upon the share that law says she is entitled to get or elect to get--mechanics could vary a lot by state.

     

    And things could change---and we sort of as public policy require one to care and provide for spouse--so if they grow old together but one needs Medicaid there might be issues wherein the survivor could NOT elect not to elect the share so as to pass it to kids and transfer his or her burden to the public roles as impoverished --remote--but things change--each could change wills as well....

    Dads duty is to spouse--and hers to him!   Don't meddle too much!

    Now if each parent wants more assurance  some of thier stuff ultimately passes down to thier kids or on thier side of equation there are BETTER/SAFER ways to do it- parents need to discuss same with counsel .

    A Q-Tip may be a better tool --

     

     

     

  • 09-25-2009 12:53 PM In reply to

    Absolutely, YES!

    "His intention is for all of his estate to be distributed to his (and my Mother's) three adult children"

    State law protects a spouse from being disinherited.  A spouse is a closer relation than children.  His intention CANNOT be carried out if he is married, absent consent from his spouse.

    He could also investigate a trust, but that's more complicated.

  • 10-03-2009 6:22 AM In reply to

    Re: Absolutely, YES!

    "His intention CANNOT be carried out if he is married, absent consent from his spouse."

    Just curious, would a prenuptial agreement be considered consent, or would additional documentation need to be provided post marriage in order for a will that excludes the spouse to be upheld?  Which would take precedence, a prenup or the will itself (assuming the will was signed/witnessed prior to the prenup)?

     

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