How Can the Deceased's Last Will Be Legally Changed by the Spouse?

By Beverly Bird

When a testator signs his last will and testament and he has it witnessed and notarized, it becomes a legally binding document. The only person who can amend it or revoke it is the testator himself. As long as his will meets the legal requirements in his state, the court will uphold it. No one -- not even his spouse -- can unilaterally change its terms, but she can override her own bequest in some states.

Statutory Shares

Most state codes include provisions for elective or statutory shares in the event a testator omits his spouse from his will, or if he bequeaths her only a small share of his estate. The dissatisfied spouse can notify the court that she would like to reject the terms of the will; the court will then allow her to take a statutory percentage of the estate instead. Statutory means that state law defines the exact percentage. It varies from jurisdiction to jurisdiction, but is commonly about one-third of the decedent's assets. When a dissatisfied spouse does this, it legally changes her spouse’s will in the respect that his beneficiaries only receive the remaining balance after her statutory percentage; they will not receive all that the testator intended to give them. However, it does not change any other terms of the will.

Community Property States

Community property states do not generally recognize elective shares. In these states, spouses equally own all marital property by law. A surviving spouse automatically retains her half of the marital property when the other spouse dies; he only has a right to bequeath his own half. If one spouse tries to leave more than his half of community property to beneficiaries in his will, the surviving spouse can notify the court and block the bequest. This, too, would change his will, but only those bequests in which he attempted to give property that did not legally belong to him.

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Joint and Mutual Wills

Some spouses elect to leave joint or mutual wills. A joint will is co-signed by both spouses and leaves everything they own to each other. When one spouse dies, the other inherits. Other heirs generally do not receive their bequests until the second spouse dies, when the property passes on. Mutual wills follow the same premise as joint wills, but involve two wills and a separate written agreement that neither spouse will change their own. As long as both spouses are living, they can change their mutual will by consent, but when one of them dies, it becomes irrevocable. This agreement prevents one spouse from changing her will after the other spouse dies. Before that time, she can change it any time she likes, but she has no control over her spouse’s mutual will.

Common Misconceptions

A power of attorney gives someone else, the agent, the right to make personal transactions and decisions on behalf of the grantor. Many people believe that when their spouse gives them power of attorney, they can use this document to change the terms of his will. This is not true. A power of attorney does not authorize a spouse or anyone else named as the agent to write a will for the individual granting it, or to change the terms of his existing will.

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Inheriting Property in a Will in Missouri

References

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California Laws Regarding Wills

California law requires that a testator, or the person making a will, be at least 18 years of age and of sound mind. The statutes regarding mental competency to make a will are more extensive than those in most states. Under California Probate Code Section 6100, the testator must remember and understand his relationship with his beneficiaries and his bequests to him. He cannot suffer from any mental disorder resulting in delusions or hallucinations if his will contains unexpected bequests, and there are other criteria, as well.

The Rights in Texas of a Deceased Husband's Second Wife

When a person dies, his surviving spouse is typically the first person entitled to inherit from his estate. In Texas, the decedent's estate passes according to the provisions of his will or, if there is no will, the laws pertaining to intestate succession. If the decedent has married a second time, that surviving spouse has a claim to the estate's assets either by will or intestacy.

Does a Living Trust Change When a Person Remarries?

A living trust is created by a grantor when he transfers property to a trustee to hold and manage for the benefit of specific beneficiaries. When a person creates a living trust, it is normally a part of a broader estate plan. Oftentimes, the creator names himself as beneficiary and initial trustee, but when he passes away, the trust then conveys his property to other designated beneficiaries instead of by will. If the creator of the trust remarries, the terms of the trust generally do not change automatically. However, many times the trust can be altered to include a new spouse as a beneficiary to the trust.

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