If you already have a will, you’ve taken an important step toward ensuring that your family and other loved ones will be taken care of, according to your plans, after your death. But a will is not a static legal document. If you’re going through a major life event, be sure to review and update your will to accurately reflect your current intentions. Marriage, divorce, or the birth of a child can significantly affect family dynamics and assets. It’s well worth your time to reassess your goals and revise your will accordingly.
Marriage
It may sound obvious, but If you’re getting married and you already have a will, be certain to include your new spouse if you want to prescribe how he or she would inherit part or all of your estate. If you don’t revise your will to include your new spouse, then Mass. Gen. Laws c.190B § 2-301 may apply. This law states that upon your death, your surviving spouse would be treated as if you had died without a will. That means she or he may only inherit a portion of your estate not left to any children or other designated heirs from before your marriage. While this law protects a spouse unintentionally omitted from a will from receiving nothing, it leaves your surviving spouse without the resources you might have wished to pass along.
Former Massachusetts law provided that marriage revokes a will unless the will appeared to be executed in contemplation of the pending marriage. But this is no longer the case. Today, as stated above, a will executed prior to marriage may still be valid. Updating a will to reflect your current intentions clarifies your wishes of how to administer and distribute your estate—and saves your personal representative a potentially fraught situation to untangle.
Divorce
It’s essential to update your will If you are going through a divorce. Note that, according to Mass. Gen. Laws c. 190B § 2-301, a prior will is not declared void until a final divorce Nisi judgement has been entered. In other words, while you are going through the divorce proceeding, you and your spouse are still legally married. Should you die in the midst of the divorce, even though the divorce proceeding is active, your death automatically terminates the proceeding, and your prior will would remain in effect.
That is why, especially in a very contentious divorce, it may be worthwhile to update your will even before the final judgement has been determined. After a final divorce Nisi judgment is entered, you should certainly update your will to accurately reflect your current intentions for the disposition of your estate.
A New Child
The birth or adoption of a child is another major life event that deserves a review of your current will or writing a new one, to ensure that your child will receive a portion of your estate consistent with your intentions. In Massachusetts, a child does not have a complete legal right to inherit from a parent. So you want to be certain to make explicit your estate goals for your child.
Under Mass. Gen. Laws 190B, § 2-302, omitting a child from a will does not necessarily give rise to a disinheritance, but will most likely limit the child’s share to an intestate amount. As in the other situations described above, the best way to ensure that your intentions are met is to keep your will and estate documents up to date. Our attorneys at Mountain Dearborn will be pleased to assist you through the process of creating or updating a will. Please contact us here.
Tyler Toothman is pursuing his LLM in Taxation at Suffolk University Law School and will be joining Mountain Dearborn as a full-time associate this fall. He has a strong interest in trusts and estates.
Image: Nathan Dumlao
