Effect of Marriage and Divorce Upon a Will

Legal Troubles when a Will Names an Ex-Spouse as Beneficiary 

 

A Will is an important part of protecting your loved ones and ensuring that your intentions are carried out after death. It is equally important to update your Will whenever there are major life changes.  

One of the most significant life changes some may experience is going through a marriage or divorce. It makes sense to immediately update your Will if you get married or enter any type of divorce proceeding, even if the divorce is not final.  

 

But what happens if a person is married or divorced, then passes away with a Will that was never amended to account for the life changes? What happens to the gifts to the new spouse or ex-spouse?  

 

Pennsylvania has a law under the Probate Estates and Fiduciaries Code that directly addresses these questions at 20 Pa. C.S. § 2507. The law states that Wills shall be modified for marriage and divorce events which occurred after the Will was drafted unless the testator directed otherwise. 

  

Does the law protect surviving spouses who were not named in a prior Will? 

 

If a testator marries after making a Will, but later dies without modifying the Will, the surviving spouse receives, at a minimum, the share of the estate the surviving spouse would have been entitled to had the testator died without a Will. This rule refers to Pennsylvania’s intestacy law, which directs the share of the estate a surviving spouse receives if there is no Will. The spousal share varies depending upon the family structure but is always at least one-half of the estate.  

 

 There are exceptions to this rule, such as situations where the Will was made in contemplation of marriage to the surviving spouse or where the Will would give the surviving spouse a greater share as written.  

  

What happens to a Will that leaves gifts to an ex-spouse by divorce? 

 

 If an ex-spouse is named in a Will and the testator dies, all the provisions of the Will relating to the ex-spouse are void, unless the Will directed otherwise. The Will as a whole might still be valid, but the provisions related to the ex-spouse become ineffective. This provision is true for both a divorce and a death which occurred during the course of divorce proceedings where grounds for divorce were established. A Will which was never modified for divorce events can lead to legal battles over who can serve as the executor and how the estate should be distributed. 

 

We know there are many potential challenges that may arise when dealing with the loss of a loved one whose Will did not account for a major life event. Many families have a goal to honor their loved one’s wishes in the probate process and may experience frustration dealing with a Will that did not reflect the true intent.  

 

 As a probate attorney to estate executors, I help settle estates efficiently and reduce stress. If you know someone faced with a probate process or roadblocks to a property sale, please have them contact us for a free evaluation at: 

 

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