{Read in 3 Minutes} As a Trusts and Estates Attorney, writing Wills for people is a big part of my job. I’ve always believed that a Will is not an off-the-rack sort of document. It should be very neatly tailored to meet the individual client’s needs. While there are some people who may not need a Will because of their family situation, recently married people who already have Wills must immediately review their estate plans. Let me tell you a little bit about why.
Under New York law, a spouse has certain rights. A surviving spouse has certain rights in their deceased spouse’s Estate. These can include the rights to a minimum distribution known as the Elective Share, but it can also include things like the rights to certain family exempt property and priority to serve as the Administrator of an Estate where someone dies without a Will. The spouse is not entitled to everything else just by virtue of their status as the spouse.
This is particularly true when a person wrote a Will and then subsequently married (or re-married). For example, let’s say a New Yorker, we will call her Jane, had a Will that she signed a few years back. She recently got married. The Will that she has from a few years back doesn’t mention her new spouse because the two of them were not even dating at the time. The Will leaves everything to other beneficiaries, perhaps siblings or nieces or nephews or charitable organizations. Under this example, if Jane does not update her Will, her spouse is only entitled to the minimum spousal protections — under these circumstances, a third of all of her assets, excluding some things like life insurance death benefits. This means that, even if Jane fully intended to leave everything to her new spouse but never got around to writing a Will, the spouse can get only their minimum distributions and then would be put in the unfortunate situation of asking Jane’s biological next-of-kin if they’re willing to “do the right thing” and deliver the balance of the assets to Jane’s spouse. In my experience, this has been hit-or-miss at best.
How do we fix this? Once a client gets married they should immediately review and reconsider their estate plan. This means that, if they had a prior Will, they should speak to the attorney who wrote it relatively quickly after marriage (or if they want to be proactive, even beforehand) to ensure that they include provisions for their new spouse. This would rectify the problem.
Finally, it’s important to note that these changes apply when a person gets married. There are protections built into the law if you have left money to your spouse under your Will and you subsequently get divorced. This only applies to married couples where the marriage has ended in divorce. Unmarried couples need to immediately redo their estate planning to prevent their ex from inheriting their assets (they may actually laugh all the way to the bank).
For more information on this topic, please contact me.