Over the years, I have received many questions from clients and others regarding probate matters. A common question is, “What will happen if my spouse dies with a will executed prior to our marriage?”
The answer to this question depends on a number of factors. However, if your spouse executed a will prior to marriage, provided the language of his or her will does not indicate that the will was made in contemplation of a future marriage, and also provided there is no prenuptial agreement, then the surviving spouse is generally entitled to a share of the probate estate (i.e. those assets that did not pass by virtue of joint tenancy or beneficiary designations).
This share may include:
- A selection of certain personal property, including clothing and jewelry, an automobile, household goods and furnishings, and other tangible property not to exceed $3,000 in value.
- One-half of the decedent’s property other than marital property or property held exclusively with the surviving spouse as tenants in common. The surviving spouse will retain his or her interest in marital property, and this interest is not subject to administration.
- Under certain circumstances, a special allowance for the support of the surviving spouse.
Marital property law can be complicated, and I would strongly recommend that you contact a qualified probate attorney to discuss your specific circumstances. However, the best approach would be to consult with an estate planning attorney while you and your spouse are both still alive and well to ensure your assets ultimately pass as intended.
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