Does Marriage Invalidate a Will?

By Brette Sember, J.D.

Does Marriage Invalidate a Will?

By Brette Sember, J.D.

When you get married, your legal heirs change. Your spouse becomes someone who would inherit from you if you were to die without a will. If you already have an existing will, the impact of your marriage on the will depends on your state laws. In some states, the will could be completely invalidated, while it might not be affected at all in others.

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Invalidation of a Will by Marriage

In some states, if a person gets married after executing a will, the will is completely invalidated if it does not include the current spouse. The reasoning behind this is that a will is expected to reflect a person's natural heirs and, once you are married, your spouse becomes one of those heirs. For example, Kansas revokes a will if the testator gets married or has a child after writing it. Oregon revokes a will unless the testator specifically intends for it to stay in place or if there is a prenuptial agreement that discusses marital inheritance rights.

Pretermission

When a person dies intestate—that is, without a will—state inheritance laws always give the spouse a portion of the estate, usually one third to one half, with the rest going to any children. In most states, when there is a will that predates a marriage, the spouse is allowed to receive the intestate share, even though the will does not include that spouse. This is called pretermission. The will itself remains valid but is adjusted so that the spouse receives the intestate share set under state law. For example, if John has a will that leaves 100 percent of his estate to his daughter and he marries after creating the will, upon his death his spouse would get one third or one half—depending on that state's laws—of the estate. The daughter would receive the remainder.

Will Unaffected by Later Marriage

In a few states, a will that predates a marriage is accepted as valid. Texas is an example of a state where the will would be probated as written even if the testator married after the will was executed.

Other Information About Wills and Marriage

There are a few other important details to know about wills and marriages.

  • Annulment or divorce. In most states, if you have a will while you are married and then end the marriage, the will is automatically revoked. It's possible to leave an inheritance to your ex, but you have to write a new will that specifically states you are doing so.
  • Disinheriting your spouse. It can be difficult to completely disinherit your spouse in your will. In some states, even if you create a will after your marriage and specifically state you are not leaving anything to your spouse, the state gives the spouse a right of election to take the intestate share he would get if the testator had died without a will. It is possible to use a prenuptial or postnuptial agreement to disinherit a spouse. It is also possible to place all of your assets in a trust so they pass outside of probate, meaning your spouse cannot use the right of election through your will.

Due to the variance of laws from state to state, it's important to find out what your state laws are about marriage and wills and make sure that your will is written so that your wishes are reflected and can be enacted.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.