What Effect Does Marriage and Divorce Have on Your Will?

What Effect Does Marriage and Divorce Have on Your Will?

September 6, 2021

Tanko Law Montana

Creating a will can be a dense and complicated experience for many of us, but the peace of mind that comes from the security you have built for your family will ease tensions you may not even realize that you have. Did you know that there are circumstances, though, that may invalidate or change your will after it's been created and accepted as legitimate?


The subject of marriage comes up often. For example, a person who makes the time to work with an attorney to create a will in their twenties or thirties cannot know what life changes could be coming their way in their forties, fifties, and so on.


Will you get divorced? Married? Remarried? Will you adopt a child? Will you lose or gain assets that affect their inheritance?


If you have changed spouses, or are thinking about getting divorced, married, or remarried, there is information that directly concerns the legitimacy of your will and how your assets will be distributed after your death.


How Does Marriage Affect an Existing Will?


Your will should reflect your life as it evolves and changes. Marrying someone, or remarrying, after you have created your will can immediately alter that will because your spouse will legally become your main heir, unless there is already specific language or provisions made in the initial will for the inclusion or exclusion of a new spouse.


The language of your document may sound vague, such as referring to 'any future spouse' instead of adding a specific name, but such stipulations can be easily added to a will in order to protect yourself and your family from future problems or confusion. We don't want our families and our legal matters to be in any disarray after our deaths, which is the entire point of creating a will in the first place.


Montana's equitable distribution laws state that if a person dies without updating or creating a new will, their entire estate may be inherited by their spouse and not the inheritors named by you in your directive. It would be up to the living, inheriting partner to then distribute assets to your heirs as THEY see fit, not as how you planned. Even the most well-meaning spouse can make mistakes.


This can cause many problems within families and the safety and security that you want to leave behind for your children, grandchildren, or various charities can be disrupted and even canceled. The future of your assets, and your family, may be left up to someone unaware, or even uncaring, of your wishes. Those whom you wished to provide for may be out of luck if you don't update your will to reflect your life changes.


If you pass away without updating your directive, your wishes can be ignored or changed in favor of our state inheritance laws.


What if a Person In Montana Dies Without a Will?


State inheritance laws can give the spouse a portion of the estate, while reserving the rest of your assets to any of your natural children. The state may also release the entirety of your estate to your spouse, instead of your children and/or other heirs. It all depends on the construction of your family.

The distribution of your assets when there isn't a directive will be based upon how many heirs that you leave behind, meaning your spouse and children. If you have a living spouse as well as children, your spouse will inherit everything. But if this spouse has children from another relationship/marriage, then the spouse will inherit $150,000 and then half of whatever is remaining. The rest goes directly to your children.


For the record, adopted children, your children's half-siblings, and common-law partners are all legal heirs.


If you are the spouse with children from another relationship, or if you both have children from other relationships, the surviving spouse will receive $100,000 and then half of the remaining balance. Of course, the rest will go to your children.


How Are Step-Children Handled in a Will?


The rules can be tricky. For example, you created a will as a single person. You marry later on and gain step-children who you love as your own. If your will isn't re-created or updated around your new life, your step-child(ren) will not be able to legally inherit from you, even if it is what you wished. It must be written legally, fully reflecting your current circumstances and personal wishes.


Pretermission: How Does it Work?


If you have made the decision to specifically leave someone out of your will that would ordinarily inherit, referred to as pretermission, they may inherit anyway if that information is not in your will at your time of death. Your spouse, even if they are not mentioned in the will, will legally inherit everything due to their position as your partner, even if you didn't wish to leave them anything (which can happen if both parties have plentiful assets, for example).


How Does Divorce Affect a Will?


If you decide on divorce after your will has been created, anything that would have been left to the former spouse will be revoked as you have severed legal ties to that person. This does not affect the inheritance of your shared children. The will itself will not be revoked, the divorced party will simply be removed or ignored and your children will replace them in succession if a new spouse isn't acquired beforehand.


If a divorce occurs while the children are young, it may be best to name someone to control their inheritance until they are older. A trusted family member or attorney, such as the person you have chosen to organize your will, would be best, especially if your divorce was at all contentious.

Updating your marriage information as soon as you can allows your will to grow with you and evolve along with your changing life. A local Montana Will and Probate Attorney is your best bet for the future security of your family.


Contact us at Tanko Law to begin discussing the details of your will. Our team will protect your assets with expertly crafted and legally valid wills that represent you and your life, right now and years in the future.

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