Does Marriage Invalidate a Will?

by Maggie Lourdes
    Marriage affects wills differently under varying state laws.

    Marriage affects wills differently under varying state laws.

    Keith Brofsky/Photodisc/Getty Images

    Historically, common law held that marriage invalidated a previously made will. However, today, if a party fails to revise a will after marriage, the effects vary based on individual state laws. The results of marriage on a prior will range from no effect at all to a partial or complete disruption to a will's terms.

    Revocation by Marriage

    Probate laws have evolved dramatically through the years. In the 19th century, a will made before a woman's marriage was automatically revoked after her marriage. A man's will remained valid after he married. However, once he and his wife bore a child, any will made prior to the marriage became invalid. Currently, state laws are gender-neutral. However, whether marriage revokes a will varies by state. Kansas law revokes a will following marriage and the birth of a child. Oregon law states that marriage revokes a will subject to two exceptions: The will states the maker intended it to remain valid following marriage or a prenuptial agreement addresses marital inheritance rights.

    UPC and Pretermission

    Most state laws reflect the general principles outlined in the Uniform Probate Code. The UPC gives spouses intestate shares when they are excluded by a will made prior to marriage. Intestate succession statutes govern the distribution of an estate's assets when no will exists. In other words, the spouse would receive the same amount of his spouse's estate he would have received had she left no will. All intestate laws give a spouse a share of the marital estate, typically in the range of a third to half of the estate. Therefore, although marriage does not revoke wills in many states, it can have a substantial impact on the will and other beneficiaries. Laws that are similar or identical to the UPC provisions on this topic are generally referred to as "pretermission statutes."

    Lack of Consequence

    In a handful of states, marriage does not affect wills made prior to the nuptials. For example, Texas does not have a pretermission statute; thus, marriage does not revoke a will in whole or in part. In Texas, a will made prior to marriage is honored even if it fails to name a spouse as a beneficiary. Therefore, in a state such as Texas, it is crucial for people to review and update their wills after marriage. Otherwise, a person may be inadvertently left without assets if her spouse dies.

    Annulments and Divorces

    Generally, marriage annulments and divorces automatically revoke wills. The wording of the New York and Idaho probate statutes are common to most states. They both declare wills are revoked by acts of divorce or annulment. If a party wishes to make a will devise for a prior spouse, a new will should be drafted because prior wills are generally terminated by operation of law.

    About the Author

    Maggie Lourdes is a full-time attorney in southeast Michigan. She teaches law at Cleary University in Ann Arbor and online for National University in San Diego. Her writing has been featured in "Realtor Magazine," the N.Y. State Bar's "Health Law Journal," "Oakland County Legal News," "Michigan Probate & Estate Planning Journal," "Eye Spy Magazine" and "Surplus Today" magazine.

    Photo Credits

    • Keith Brofsky/Photodisc/Getty Images