How Is a Will Affected by Multiple Marriages?

by Beverly Bird

Most American divorcees remarry within five years, according to the U.S. Census Bureau. Spouses who lose their partners to death don’t even wait that long -- the national average in 2006 was three years for men and about four-and-a-half years for women. If you never get around to adding or deleting spouses from your will, state law typically takes over and decides what will occur -- and sometimes these laws might override your final wishes.

Divorce is never easy, but we can help. Learn More

Effect of Divorce

The majority of states void all provisions made to your spouse in your will, effective the date of your divorce. They treat the situation as though your spouse predeceased you, i.e. she no longer exists to inherit from you. The same is obviously true if your spouse dies. However, some state codes contain a loophole in this law. For example, in Texas, Florida and California, the rule applies only to a will created during your marriage. If you divorce your spouse then write a new will but leave her a bequest, regardless of the divorce, she can inherit. This is true even if you remarry someone else, unless you rewrite and revise your will one more time to write out the bequest you made to your initial spouse after your divorce. If you remarry the spouse you divorced, states such as Virginia will reinstate the bequest you made to her if you did not create a new will to omit her after your marriage ended.

Remarriage

If you remarry, and if you neglect to write a new will after the event, the situation becomes even more complex. Your second spouse receives an elective share of your estate. Elective shares are a portion of your estate -- usually one-third to one-half -- that your spouse can choose to accept in lieu of the terms of your will. Elective share laws protect current spouses from disinheritance. If you remarry after the death or divorce of your first spouse, then neglect to make provisions for your new spouse in your will, he will inherit anyway, until he either dies or you divorce him as well. This cycle of disinheritance and elective share provisions repeats with each subsequent spouse you marry.

Afterborn Heirs

Laws also protect children born to your subsequent marriages. Generally, you cannot disinherit your minor children, even if they weren’t born at the time you made your will. Your children are automatically entitled to a share of your estate. In legal terms, these children are your “afterborn” or “pretermitted” heirs. If you remarry and have additional children, but neglect to update your will to include them, they will receive the same portion of the estate they would have received had you died without leaving a will.

Cumulative Effect

After multiple marriages, if you remarry often enough, the cumulative effect leaves your estate as if you had never left a will at all. Although the law ordinarily omits your divorced spouses from the equation, any of your subsequent spouses can claim an elective share and override the terms of your will if it does not include them, provided you’re married at the time you die. Any children you have with subsequent spouses are also entitled to a share of your estate, regardless of whether you update your will to include them. Your will is ignored in this respect as well. The elective share and afterborn shares take precedence over the other terms of your will. Therefore, after the court deducts these shares from your estate, it may reduce or even eliminate bequests you intended to leave to other individuals.