Getting remarried isn’t as simple as picking a venue & flowers. No, it changes who the law automatically protects when you die, and not changing your old will choices could cause some problems. Here are ten will mistakes to fix before you remarry. Which of these would cause you problems if something happened tomorrow?
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A pre-marriage will that omits your new spouse
A lot of people never throw out their old will after they remarry. But they should. Many states have laws that give shares to a spouse who wasn’t even in that document, including the Uniform Probate Code (§2-301). This states that the new husband or wife may get what they would’ve received if there were no will at all, which is bad if you did not want that to happen. You may have intended your children from a previous marriage to receive it all, for example. Update that will.
Assuming divorce laws protect you before the divorce is final
Non-court-approved divorce papers could allow your ex to still inherit from you, should you pass away. This is because revocation rules only kick in once a divorce is complete. In fact, this happened during the Supreme Court case Sveen v. Melin, so take this as a reminder not to leave your ex-spouse dangling on old forms.
Relying on your will to change retirement and insurance payouts
It doesn’t matter what your will says because beneficiary forms on accounts like 401(k)s or life insurance win every time. The company will pay whoever is listed on their paperwork. As for ERISA-covered plans, your new spouse will be the default, unless they sign away that right. A new form will trump a fancy will in this case.
Ignoring the elective-share rules your new spouse can use
You might try to leave everything to your kids. But in many states, your new spouse can still claim a mandatory cut, like in Florida, which guarantees 30% unless there’s a valid prenup or postnup waiving it. Those waivers must meet exact rules under state law to stick & it’s not enough to simply hope that your will stands.
Not planning for spousal occupancy
Homes work differently from cash, especially in states like Florida. As such, a surviving spouse automatically gets a life estate in the marital home. It doesn’t matter that your will says otherwise. They can also choose half-ownership instead, which is built right into statute, so if you want the house handled differently, you’ll need to plan around that law.
Using “children” or “issue” when you mean to include stepchildren
Legal language is rather picky, and the word “children” usually means biological or adopted kids only. Stepchildren aren’t included. You’ll have to specifically name them if you want them to be in line for any possessions, which sounds unfair, but it’s unfortunately how the law works.
Gifting directly to minors without naming a custodian or trustee
Sure, you might have plans to leave a chunk of money to your 12-year-old. But that gift will stay in limbo until the court decides a custodian, as UTMA laws specifically state that someone else manages it until the child hits 18–21. Thankfully, states like Texas allow you to pick the custodian in your will.
Avoiding a tax-apportionment clause for who pays estate taxes
Estate taxes don’t always come out of the leftover pot, and failing to write a tax clause could lead to the bill being divided among beneficiaries. This includes those who get nonprobate assets. As such, include a clause to keep surprises away for the future, even if you may not be around to witness them.
Forgetting to coordinate with a prenuptial or postnuptial agreement
You don’t simply sign prenups & postnups once, and then forget them. A will that goes against what’s in that agreement sets things up for a legal fight. For example, your prenup says your kids get the house, but your will passes it to your new spouse. Guess which one is likely to win?
Leaving a former spouse’s name on powers granted in your will
Unfortunately, people miss this one all the time when they split. They forget that their ex is still listed as the executor or decision-maker in their wills. Yes, divorce may ensure that they don’t get gifts. But it doesn’t always kick them out of those jobs, so swap those names out now.
Sources: Please see here for a complete listing of all sources that were consulted in the preparation of this article.
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