New Will After Marriage?

In San Diego, California, many spouses of a marriage or remarriage after a divorce, legal separation or annulment, do not prepare a new will. While a new will after marriage will document your intent regarding the distribution of your estate after your death, there are disadvantages to wills such as probate fees and costs which can diminish the amount your beneficiaries receive [new spouse, children, other relatives, non relatives, charities, etc,] at the distribution of the estate. On the other hand, a will is better than no will since you can list who you want your property to go to and document your intention for when you can no longer state your intention [after death].  If you own real property or have assets over $100,000 and/or have children from previous relationships, our law firm normally recommends a living trust and we would be pleased to meet with you to discuss your individual legal needs.

In San Diego, there are many court houses and some [Madge Bradley and Vista] have both family law courts as well as probate courts.  Many persons, after a divorce, legal separation or annulment, do not have a new estate plan prepared. This is essential as soon as a judgment is entered in a family law case which terminates the martial status either as part of a bifurcated judgment or as part of a marriage settlement agreement and judgment.  In either event, a new estate plan needs to be implemented immediately. This also can happen during a dissolution, legal separation or annulment.  The family law court will lose jurisdiction if one of the parties dies before the judgment is entered. Since death dissolves the marital status by law, a probate will have to be opened which will require time and expense.

The law in this area is governed by the California Probate Code and the intent of the decedent may not be followed if there is not a valid estate plan whether this is a will, living trust, or contained in other estate planning documents.  The law will distribute your property and assets according to the terms of intestacy which may not be your wishes.  As an example, if you are married and do not have a new will [or other estate plan] when you die, then your new spouse is considered an “omitted” spouse for probate purposes and will receive a share of your estate consisting of one half of your community and quasi community property and up to one half of your separate property.  There are exceptions to this such as the following: the failure to provide for the new spouse was intentional and documented in testamentary instruments; the decedent provided for their spouse with a transfer outside of the estate; or  the spouse made a valid agreement waiving their interest and right to receive their share and distribution from the estate. 

The share of the surviving spouse will be taken first from your estate not disposed of by trust or will and then proportionately from all beneficiaries if the above is not sufficient [including your children from this or another relationship].  The valuation is determined as of the date of death.

There is an exception to this and you are urged to consult with a licensed attorney if your factual situation is the above as this is a complicated and complex area of the law.  This normally will involve probate litigation with probate fees and costs which can diminish the estate, something which you worked hard for during your life.  There is no need to have this occur and a will or a trust can avoid this situation.  There are many different estate planning strategies, including a wills and trusts.  This article does not endorse or recommend any specific estate planning strategy and is generic in nature and only intended to discuss the disadvantages of dying without a will or other estate plan.  Our firm practices in family law and we can give you the advice needed for your specific and unique situation.

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