Legal Question in Wills and Trusts in California
will vs. new marriage
My father completed a will within the last 2 months. In the will he has left everything that he has to us, his three living children. Two weeks ago, he announced that he is getting married again, to a woman he has not seen in 15 years, nor have they ever dated. He is 82, she is 60.
Once they marry, is the will that he filled out voided? Does all of his belongings/savings become hers when he passes away?
If the will is never amended, does it have precedence over any rights of his new wife?
2 Answers from Attorneys
Re: will vs. new marriage
The simple answer to this is no, just because of marriage a spouse does not immediately gain all right over their spouses separate property. Most likely the will would still control. However, in California there is something called the "omitted spouse rule", potentially giving a spouse rights to property if they are "unintentionally" omitted from their deceased spouses estate.
From a legal standpoint, this really comes down to what your Father desires to do. He should consult an attorney before marriage to create a prenuptial agreement and updated estate plan to make sure HIS WISHES are set out as he desires. As long as he does so, and does not take any steps to "co-mingle" his funds with his new spouse, he will most likely be able to direct the disbursement of, at least, the majority of his estate.
Re: will vs. new marriage
The new marriage will not invalidate the will, but the will has no effect until death. If Dad changes the will, your only way to undo that will be to litigate in the probate the issue of whether the will was entered into freely, voluntarily and whether Dad enjoyed testamentary capacity when the will was made. You should talk to your Dad about your concerns.
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