Entitlement of Surviving Spouse Under a Premarital Will

So what if you created a will before you got married? What if you fail to revise your will, or draft a new one, before you pass away? Under the Uniform Probate Code (and adopted in many states) there is a presumption that the decedent intended to include the surviving spouse in the will, though he or she failed to do so.

The default application of this presumption is to pay out any devise (if any) to decedent’s children (if there are children who are not children of the surviving spouse) and then give surviving spouse his share of the remainder in accordance with that state’s laws of intestacy. Simple right?

This default application goes into effect unless one of these three conditions are met:

1. There is evidence, from the will or otherwise, that the will was made in contemplation of the testator’s marriage to the surviving spouse;

2. The will makes clear that it is to be effective notwithstanding any subsequent marriage; or

3. The testator provided for the surviving spouse by means outside the will with evidence that this was the testator’s intent.

While the law has provided for a default remedy for a surviving spouse not provided for in a will, it still may be worth considering modifying your will upon marriage to make clear your intentions for your spouse.


Image by: photosteve101