A will remains in force until it is revoked. Your old will is still valid. Your new spouse will be able to elect a spousal share, but the ex could always arguably mount a will contest. Make things easy and simply do a new will. The new will, done correctly, will revoke any and all previous wills. For short money, you will sleep nights.
My advise is to also take your spouse along so that they, too, can do a new will.
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The prior attorney offers sound advice. However, I would suggest that you do more than redrafting your will. Do estate planning which looks at assets other than the will, such as life insurance and retirement plans, as the designation of beneficiaries need to be examined and changed if your prior husband is beneficiary. The tax implications should also be analyzed and planned for in any estate plan. Finally, living wills and durable power of attorney documents and the need for any trusts should be explored.
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As a MA estate planning attorney, let me assure you that the assertions of both gentlemen are incorrect as a matter of law. G.L. c. 191, section 9 states as follows:
Section 9. The marriage of a person shall act as a revocation of a will made by him previous to such marriage, unless it appears from the will that it was made in contemplation thereof. If the will is made in the exercise of a power of appointment and the real and personal property subject to the appointment would not, without the appointment, pass to the persons who would have been entitled to it if it had been the estate and property of the testator making the appointment and he had died intestate, so much of the will as makes the appointment shall not be revoked by the marriage.
If, after executing a will, the testator shall be divorced or his marriage shall be annulled, the divorce or annulment shall revoke any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse, as executor, trustee, conservator or guardian, unless the will shall expressly provide otherwise. Property prevented from passing to a former spouse because of revocation by divorce shall pass as if a former spouse had failed to survive the decedent, and other provisions conferring a power or office on the former spouse shall be interpreted as if the spouse had failed to survive the decedent. If provisions shall be revoked solely by this section, they shall be revived by the testator's remarriage to the former spouse. A decree of separation which does not terminate the status of husband and wife is not a divorce for the purpose of this section.
So, if your old will is revoked and you fail to make a new one, then your estate would pass according to the intestacy statute. Your new wife may or may not inherit everything -- and would that protect any children you have from the first marriage?
However, you have more to worry about that the will. Have you updated your retirement plans? Life insurance policies? The will statute does not extend to non-probate assets, and there's nothing in the law to stop your ex from being the beneficiary of the plans if you fail to update the beneficiary designations. Further, if you have children, you need a will in order to designate guardians for the children in coordination with the terms of the separation agreement.
See a good estate planning attorney who can review your situation, your assets and the separation agreement and help you determine the right course of action.
A new marriage for a Massachusetts resident requires a new will. You can see the law for yourself at http://www.mass.gov/legis/laws/mgl/191-9.htm . If the will was executed in contemplation of marriage, it could still be valid, but otherwise your marriage revoked it.
Other estate planning issues should also be explored by a newly-married couple, including retirement plans and, for older persons, shared responsibility under Medicaid law for each other's long-term care costs.
I agree with the previous attorneys that, in Massachusetts, a marriage will revoke any previous wills unless those wills were specifically drawn up in contemplation of the new marriage. The law is trying to protect you and your family - as it assumes that because you are now married, you have new and different obligations, including to your new spouse. In other words, you need a new estate plan. If you would like to schedule a time to talk more about your plans, please feel free to contact my office.