Wills - Changes in Family After Execution Flashcards
Omitted Spouse Statute (Testator marries after will is executed)
The omitted spouse takes an intestate share of the estate other than property left to children born before the marriage.
Exceptions to the Omitted Spouse Statute
(I) It appears from the will (no extrinsic evidence) that the will is written in contemplation of marriage
(ii) the will states that it is to be effective notwithstanding subsequent marriage; or
(iii) MAJOR EXCEPTION - provision was made for the spouse by transfers outside the will and it is shown that the transfer were intended as in lieu of testamentary gifts by testator’s declarations, by amount of the transfer, or other evidence.
Note: If Codicil filed with no changes/mention of the new spouse, then the spouse takes nothing under “doctrine of republication”
What happens if testator is divorced after will is executed?
Final decree of divorce revokes all gifts and fiduciary appointments in favor of former spouse and relatives of the former spouse who are not relatives of the testator.
Estate distribution as though former spouse and her relatives predeceased the testator.
Must be dissolved by divorce or annulment.
“Divorce revokes rule also applies to all revocable dispositions revocable trust (including IRAs/joint bank accounts with survivorship provisions) Does not apply to ERISA plans.
Omitted Child Statute - Child born or adopted after will’s execution
MA - only applies to children born or adopted after the will’s execution.
(1) IF no other children when will executed, Omitted child takes an intestate share UNLESS the will devised substantially all of the estate to the other parent of the omitted child.
(2) IF TESTATOR HAD OTHER CHILDREN when will executed and the other children were provided for in the will, omitted child’s share is limited to gifts to the other children (even if they are contingent gifts). No other beneficiary’s bequest is reduced. [We don’t look to intestate share.]
When does the Omitted Child Statute NOT apply?
(I) It appears from the will (no extrinsic evidence) that the omission was intentional;
(II) Provision was made for the child by transfers outside the will and it shown that the transfers were intended as in lieu of testamentary gifts by testator’s declaration by amount of the transfer or other evidence.
