Are wills before marriage binding?

Asked about 2 years ago - Pelham, AL

I was married to a lady for 25 years. She had a will before we were married. Is it still binding. Everything we have (which is not a lot) is in both our names. We failed to make a will. She passed away. The will she had left everything to her children. We had discussed everything with our children and they know we wanted each other to have our home and few assets. Then everything would be split four ways. Her will states everything goes to her children? Do I now lose everything.

Attorney answers (3)

  1. Rachel Lea Hunter

    Contributor Level 14

    3

    Lawyers agree

    Answered . I am not admitted in Alabama. However, I do wills and trusts and can answer your question generally. First, I am sorry for your loss. However, for the benefit of others who read this, please please please - make a will. And any time you or your spouse has a life-changing event - marriage, death, divorce, adoption, birth, relocation to a new state or just the passage of some time dust off and review that old will to make sure that it still comports with your wishes.

    In answer to your question, no you do not lose out because the will was made prior to your marriage. Most states have laws to address this issue. Generally, if parties make a will and then divorce, any bequests made in favor of a testator's spouse are revoked and the spouse is treated as if he/she pre-deceased the testator. Your case is just the opposite - your wife made a will and then married you and made no provision for you. If you had a pre- or post-nuptial agreement waiving your inheritance rights, then you might get nothing, but if you had no such agreement, then a spouse may not be cut out completely and can claim what is called an elective share. A spouse may also be entitled to something called a "yearly allowance" or "spousal allowance" or "family exemption." It goes by different names in different states.

    Finally, wills generally cover probate assets. You do not really indicate what all you and your wife owned or how it was titled. Assets that pass outside of probate to the designated beneficiary are things like IRAs, retirement benefits, land owned by a husband and wife as either a joint tenancy with right of survivorship or tenancy by the entireties or joint checking accounts.

    These are all reasons why you need to see a probate lawyer in the county where your wife resided prior to her death. The time period to claim elective rights, if you are entitled to them, is short - could be within 6 months of death. Again, I don't know the specifics of Alabama probate and you do need to pay a probate lawyer to review your wife's will and advise you of your rights of inheritance since she made the will prior to her marriage to you and made no provision for you.

  2. Steven J. Fromm

    Contributor Level 20

    2

    Lawyers agree

    Answered . The prior attorney offers sound advice. Remember that a will only speaks to those assets that are not disposed of in another fashion. So if everything was held jointly, then it passes to you regardless of what the will states. To the extent there were assets in her name, even though the will excludes you, most states have a statutory forced share that gives the surviving spouse a certain percentage of the estate usually 1/3. Get with an estates attorney to assist you and to get definitve answers for your situation.

    Hope this helps.

    Please remember to designate a best answer to your question.

    Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is sjfpc@comcast.net , his website for more tax, estate and business articles is www.sjfpc.com. and his blog is

    LEGAL DISCLAIMER Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia... more
  3. Douglas C Martinson II

    Contributor Level 13

    Answered . YOu are what is referred to as an "omitted spouse" since you were married after the will was executed. You would be able to make an election to receive 1/2 of the estate. You are also entitled to spousal exemptions in the amount of $15,500, however, you must apply to the court for those. You will need to see an attorney to do all of these items.

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