I had a will before I got married. Is it still legal or did getting married void it?

I want to keep my existing will in place but now that I’m married, I don’t know if it’s still valid. My wish is to leave it as is and not include my husband in my will. Can I do that or do I have to draw up a new will and purposely state that he is to be excluded? In the future, things could change but right now I just want to keep my first will pre-marriage in tact. Thanks,

Asked on June 12, 2017 under Estate Planning, New York


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

In most states, one spouse cannot disinherit the other. Through "elective share" statutes, a surving spouse is entitled to a portion ot their deceased spouse's estate. This is true no matter what their Will may specify. In NY, the surviving spouse is given the right to take the greater of 1/3 or $50,000 from the deceased spouse’s “net estate” which is the probate estate plus “testamentary substitutes”. These include assets passing under a Will plus jointly owned property and bank accounts, payable on death accounts (POD), assets held in a living Trust, most assets with beneficiary designations, and gifts made by the decedent within 1 year of death. The surviving spouse also has rights to the decedent's car, CD's and personal items up to the statutory allowance. The intent of the law is to allow the surviving spouse access to their elective share even if the deceased spouse attempted to use techniques to avoid probate. To be certain of all of this, you should consult directly with a local probate attorney; they can advise you further based on your specific estate.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Legally, a marriage does not void a will. However, it can make a will no longer appropriate to your needs. If your concern or desire is primarly to disinherit your spouse (to make sure he is excluded), then for that, there is no reason to change your will: your state (New York) does not allow you to disinherit your spouse. Rather, no matter what your will says, your state gives your spouse an "elective share", or the right to take a portion of your estate. You can obviously give your spouse nothing extra, or no more than state law gives him, but you can't prevent him from getting the state-mandated minimum.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.