Legal Question in Wills and Trusts in Georgia

Does marriage supercede the rights of

the children of a prior marriage becoming beneficiaries as described in a earlier will? Georgia law


Asked on 1/28/13, 5:18 pm

1 Answer from Attorneys

I don't understand what you mean. The biological adopted children of the testator/testatrix are entitled to inherit from his/her parent. They are not entitled to inherit from a step-parent unless legally adopted.

Example: Mom & Dad have 4 kids, A, B, C & D. Mom and Dad get divorce or maybe Mom dies. Dad marries Wife 2. If Dad dies with a will, his property is distributed as per his will. If he dies without a will, then wife 2 and kids inherit (1/3 to wife and 2/3 to children, in general).

If dad dies and leaves all to wife 2 and then wife 2 dies later, wife 2 does not have to leave anything to Dad's kids, A, B, C and D.

Divorce will revoke a prior designation in favor of a former spouse. So in my example, when Mom and Dad divorced, neither Mom nor Dad would have a right to inherit from the other. Also, if Dad divorced and made a new will and then married wife 2, in some states, wife 2 would have a right to take an elective share of dad's property. This is not the case in Georgia.

However, other than as noted, marriage has no effect on the rights of biological or adopted children. It may come as a surprise though to learn that a parent is not obligated to leave a child anything if the parent so desires. So parent could leave everything to new spouse or some things to new spouse and some of the children or any other distribution the parent wants.

Also, wills only govern probate assets. There are many kinds of non-probate assets. IRAs, life insurance, annuities, pensions, 401(k)s, or land or bank accounts jointly owned with another are all examples of things that may pass outside of probate to the named beneficiary or surviving joint owner. Thus, the ability of children to inherit may also depend on what the parent owns and how it was titled when the parent dies.

Read more
Answered on 1/28/13, 5:49 pm


Related Questions & Answers

More Probate, Trusts, Wills & Estates questions and answers in Georgia