Does a Will take precedence over a marriage?

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Does a Will take precedence over a marriage?

My son will be going active duty in Afghanistan in June. He plans to get married before he leaves. He has a son from a previous relationship. If he puts his son in the Will, would everything be left to his wife or is the Will followed?

Asked on January 6, 2011 under Estate Planning, Massachusetts

Answers:

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

Answered 10 years ago | Contributor

The fact is that one spouse cannot disinherit the other spouse, at least completely (absent a specific agreement to the contrary, such as a pre-nuptial agreement).  Each state, including MA, has laws that protect a surviving spouse from being completely cut off.  It has been deemed against public policy to allow a surviving spouse to become destitute due to being disinherited by a deceased spouse.  Consequently, the surviving spouse can choose between the property left in the deceased spouse’s Will, if any, or a statutory share set by state law.  This is known as the the right of  "spousal election".  A typical such statute provides something along the following lines: if the decedent is survived by children or descendants, the surviving spouse is entitled to 1/3 of the estate; if the decedent is not survived by children or descendants, the surviving spouse is entitled to 1/2 of the estate.  However, the surviving spouse must file usuallyy for this election within 6 months or so from the date the Will is entered into probate.

 

At this point, your son should consult directly with an estate planning attorney in MA, as to specific state law.


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