Usually, spouses leave their estate or the largest part of their estate to their spouses. That seems simple enough, but sometimes the spouse in question is not easily identified. In order to be certain, the spouse is usually specifically identified by language like "I leave my estate to my spouse, Reginald Dwight." This way, the intent to leave the estate to the spouse is recognized and the spouse is identified.

A pretermitted heir is simply an heir that is omitted from a person's will. So a pretermitted spouse is a spouse who has been omitted from a person's will. If there is a question as to whether the marriage was valid, then there could also be a question as to whether the will is effective to allow the spouse to take his or her portion of the estate under the will.

Using a Trust to Provide for a Spouse and Heirs

Sometimes a person wishes to provide for a spouse and also provide for other heirs. One way to do this is to establish a trust to hold the estate property for the benefit of the surviving spouse, and to thereafter pass some or all of the trust property to the other heirs when the spouse later dies. Often, the terms of the trust establish that the surviving spouse will receive income until death or until the passing of some event, or until other beneficiaries qualify for their shares of the estate. This way, the surviving spouse may qualify for the federal estate tax exemption given to a surviving spouse, and the estate property is safeguarded for other heirs.

Marriage Validity

It may sound like a rare event that the validity of a marriage will be challenged, but sometimes a divorce or annulment was invalid and a subsequent marriage may therefore be invalid. Also, if a marriage is terminated, that raises questions as to will interpretation.

One thing that courts take into consideration is whether the will was made based on the person's specific belief that the marriage was valid, or whether the person wished to leave his or her estate to the person he or she described as his spouse. In addition, marital status at time the person dies is important. If the marriage has terminated and the will language identifies the spouse by status ("my spouse") and by name, courts may be more likely to interpret the will to only intend to leave estate property to the spouse if the person dies while still married.

Subsequent Marriages and Effects on Wills

Sometimes when people get married they forget to revise their existing wills or assume that the law will provides for their new spouse. Most states have laws that provide for spouses that marry after a person makes a will. In other states, there are laws that revoke prior wills and allow a surviving spouse to take an elective share or an intestate share of the deceased person's estate as provided by state law.

Providing for a Spouse outside of Your Will

Spouses sometimes make provisions for their spouses in ways other than leaving estate property to the spouse upon death. Couples sometimes establish trusts such as inter vivos trusts to allow a spouse to receive the benefit of estate property while both spouses are still alive. Often, the beneficiary spouse under a trust is required to waive any pretermitted rights in order to ensure that the person's will is interpreted to give effect to both the trust and the provisions for other heirs.

How a Lawyer Can Help

Your will is going to be interpreted at some future date, by somebody that never knew you, and possibly under circumstances that you did not anticipate. Your will must be able to speak for you by being clearly expressed under the laws in effect in your state. If you want to provide for a spouse in some manner other than a will, or if you already have a will that leaves estate property to a former spouse, it might be time to talk with a lawyer. Meeting with a lawyer should give you the peace of mind that your heirs will be provided for and that your property will be distributed as you express in your will.

Questions for Your Attorney

  • How can I receive estate property from my deceased spouse?
  • How can I take my elective share under state law?
  • If I take my elective share, what happens to the other property, and how is the rest of my deceased spouse's will affected?
  • How does my election to take my elective share affect which other heirs receive estate property?