My husband has a will with his ex wife, is it valid?

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My husband has a will with his ex wife, is it valid?

My husband and I do not have a will together. We are in the state of Montana

Asked on March 9, 2019 under Estate Planning, Montana

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

Yes, it may well be valid: because somone divorces does not automatically invalidate his existing will or mean his now-former spouse does not inherit. That said: 
1) You cannot be disiherited even by a valid will so long as you are married if/when your spouse passes away. Like most states, Montana guarantees the surviving spouse a minimum "elective share" of the estate. The amount depends on how large the estate is, but can up to $50,000, regardless of what the will states. Here's a link to website with information on the subject by your state university: http://www.montana.edu/dyingwithoutawill/electiveshare.html
2) Since the existing will is not invalidiated, if he only refers to the person inheriting in the will as "my wife" and not by name, then since you are the wife now, you will inherit.
If he referred to her as "my wife, Jane Doe" and the context of the will and its overall language  makes it clear that she is only inheriting because she is his wife, then those parts referrng to her will, in that case, not be valid: if she only inherited due to being married to him but is no longer married to him, she does not inherit. Her share will go to others who would inherit from him under the terms of the will or, if the will doesn't have anyone else who will inherit if she does not, it will go according to "intestate succession," or the rules who inherit when there is no will, which  favor the current spouse and any biological or adopted children or grandchildren.
If the will doesn't identify her as "wife" or "spouse" but only by name, she still inherits under it--she is still herself or the named person--but subject to your elective share, as discussed above.


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