How Marriage and Divorce Affects a Will

Much like the intestacy statutes, the laws on wills seek to reflect the wishes of most people as to how they want property distributed at death. For instance, most testators (will drafters) probably do want their spouses to share in their estate. Most testators probably do not want their decision to marry or divorce to completely nullify carefully drafted wills. However, while there are default rules, these laws are not individually tailored to your property and your wishes. It is helpful to be familiar with how Kentucky law affects your estate plan in light of these common events. It is most effective, however, to have an attorney advise you on estate plan modifications after marriage or divorce.

Marriage

The testator’s marriage does not revoke a prior made will. KRS 394.090. When the testator dies before providing for his new spouse, the law assumes that he would prefer to die with a will that does not completely reflect his wishes than with no will at all. But the law also assumes that the spouse should share in the estate to some extent nonetheless, and this is done through the “dower and curtesy” statutes.

The term “dower” has its origins in the English common law. In 1215, the Magna Carta provided to English widows an interest in their husbands’ property, and the term persists today in Kentucky and a handful of other states. Essentially, the statute grants a widow or widower a share in their deceased spouse’s property. If the spouse died intestate (without a will), dower and curtesy is provided by KRS 392.020. If the spouse died testate (with a will), the survivor is entitled to renounce the will and take the interest provided by law in KRS 392.080. This statute is designed to keep testators from disinheriting their spouses. Creative testators may attempt to shield assets from spouses to effectively disinherit them without actually leaving them out of the will. However, this practice is subject to the surviving spouse’s claim of “fraud on the dower.” In other jurisdictions, dower and curtesy has been replaced by its more modern form, the elective or statutory share. These laws typically allow the surviving spouse a specified proportion of property, perhaps depending on the length of the marriage or other factors.

Therefore, if you die without revising your estate plan, your spouse will still be entitled to a share of your property. The statutorily prearranged amount, whether too high or too low, is probably not exactly what you want.

Divorce

If you have provided for your spouse in your will, a divorce or annulment will not revoke your entire will. KRS 394.092. It will, however, revoke dispositions to them (as well as powers of appointment and nomination of your spouse as executor of your estate) automatically. The law treats your divorced spouse as though they died before you. This rule, while a somewhat grizzly thought for your still-living ex, reflects the desire of most testators to end all financial obligations to their former spouse at divorce. With the broad goal of fulfilling the testator’s intent, the law assumes that had the testator thought to or had the opportunity to change his will, he would have excluded the ex.

Thus Kentucky law has mechanisms that automatically kick in, seeking to represent the wishes of most testators. However, your own wishes may not be carried out via default rules. For instance, you may not want to disinherit your ex, or you may want to distribute their share differently that prescribed by statute (the share that doesn’t pass to a divorced spouse will fall into the residue of your estate under KRS 394.500. Finally, keep in mind that the law does not keep your ex from inheriting until your divorce is final, which may occur months or more after you have separated. For that reason, it is advisable to consult your attorney about your estate plans at separation or when divorce is first filed to determine how best to protect your assets.

Summary

The default rules are meant to provide for the common scenario, and in some cases reflect outdated arrangements. To ensure the desired distribution occurs, it is beneficial to utilize properly drafted estate planning documents rather than default rules. Since these laws take effect at the time of marriage and divorce, it is best to discuss modifications to your estate plan with an attorney before your marital status has changed.

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