Does marriage affect my will?

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UPDATED: Jun 29, 2022

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Written By: Jeffrey JohnsonUPDATED: Jun 29, 2022Fact Checked

Marriage is a life-altering event that forces you to make all kinds of changes. For one, you and your new spouse both should create new Wills. In most states, your spouse is legally entitled to a percentage of your property after you die, unless you have a written agreement to the contrary. If you don’t want to leave at least half of your property to your spouse, you need to specify that in your new Will.

There are no hard and fast rules for how couples should make Wills. Some married couples create a Joint Will to serve them both. In a Joint Will, each leaves the entire estate to the other, but the Will then specifies what happens to the property when the second person dies. A Joint Will prevents the surviving spouse from changing what happens to the property after the first person dies. In this way, a Joint Will is essentially a contract between husband and wife who both must consent in order to revoke the Will. Because of this, Joint Wills can tie up property for years until the second death, and the survivor cannot revise the Will. If you and your spouse are considering a joint Will, be sure to consult an estate attorney because joint Wills do have limitations.

A couple can use two separate Wills to accomplish goals of a Joint Will, but without the limitations. If you want all of your property to go to your spouse, you may state that in your separate Will, but if you own separate property from before your marriage, and you want that to go to your grown son from a previous marriage, you can put that in a separate Will so he won’t have to wait until your current spouse dies to inherit. A separate Will avoids tying up the property for a lengthy period before it goes to the intended beneficiary. You may make changes in your own Will at any time without your spouse’s consent.

If you are getting a divorce, you also need a new Will. In most states a final judgment of divorce, or an annulment, revokes any gift made in your Will to your former spouse, but in some states, that does not happen. No matter where you live, though, you should make a new Will after a divorce.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

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