Does getting remarried void power of attorney and last will and testament?
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Does getting remarried void power of attorney and last will and testament?
My mother is terminally ill with
at this point probably less than 6
months left to live. She has
legally drawn up papers and filed
them with the court naming myself
as her power of attorney and
myself my children as her sole
heirs she doesn’t have much other
than her house which I currently
live in and we are having my name
added to the title as we speak.
She has been seeing a gentleman
whom she now lives with, due to
her illness and because of
religious reasons they were
considering getting married to ‘do
the right thing’. My mom doesn’t
want to change or void any of the
current paperwork in place, or
even change her last name. Would
her getting married now effect
anything? How does that work?
Asked on July 24, 2017 under Estate Planning, Virginia
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 6 years ago | Contributor
Her getting remarried does not necessarily affect either her will or her power of attorney; a change in marital status, by itself, does not invalidate either document. It is possible that, based on what each one specially says, that her marriage will cause a change. For example, say that the will had been drawn up when her first husband was alive and says "To my husband, I leave my estate; if he predeceases me, I leave it to my children." In that case, if she remarries, she will again have a husband, who would inherit instead of her children inheriting. So it would be wise for her to check what these documents say, to see what happens if she is married again when she passes.
There is another consideration, however: in many states, including Virginia, you cannot completely disinherit a spouse; the law requires uo to leave something to your spouse regardless of what a will says. In VA, that is up to (very) roughly 1/3 of the estate (the exact calculation is somewhat technical), though the amount varies based on how long they have married--if only 6 months or less, it should be signficantly less than that, but will still be *something*. So even if the will, for example, clearly leaves everything to you or her grandchildren, her new husband will have the right to take an "elective share" of part of her estate, and there is no way to stop this. If she remarries, he will get around some portion of what she has when she passes. She may wish to consult with a probate or estate attorney first, to better understand this and make sure she is comfortable with his portion of the estate.
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