It’s a little known fact of Georgia law that your marriage and/or the birth or adoption of a child may actually void your previously-signed last will and testament. Here’s an example of how this happens:
Case Study: Ashley is a recently divorced teacher with two young children and no thoughts of getting married again. After the divorce, Ashley executes a last will & testament, leaving all assets to the children in trust, and naming guardians and trustees for the children. The will makes no mention of any future marriages. Five years later, Ashley meets and marries Kim, who also has children from a previous marriage.
Ashley and Kim are each financially secure in their own right, so they decide that they will each continue to leave their assets to their respective children. Ashley reads through the signed will, and seeing that it already gives all assets to the children, believes that no changes are necessary and does not contact a lawyer.
What Ashley doesn’t realize is that, under Georgia law, a previously-signed will is voided by a future marriage (or a future birth or adoption of a child), unless the will included a sentence stating that it was written in anticipation of one’s future marriage (or birth or adoption of a child). Because Ashley’s will didn’t include this sentence, the marriage to Kim voided the will, and Ashley has no valid will at all, what is called a “state of intestacy.”
More seriously, if Ashley were to die without signing a new will, all probate assets would pass to Ashley’s “next of kin.” In Georgia, when a person dies intestate, leaving a surviving spouse and surviving children, the assets are divided equally amongst spouse and children. So, Kim will get one-third of Ashley’s estate and Ashley’s children will only get two-thirds. And, to complicate matters, the children, who are minors, will receive their share outright, rather than in a testamentary trust which can be managed for their benefit until they are mature enough to handle financial matters.
This division of the probate estate is not what Ashley intended, and it is easily resolved if Ashley signs a new will noting the marriage and re-stating the plan to leave all assets to the children in trust.
All clients considering marriage or having children in the future should review their wills and make any appropriate updates.
NOTE: This may be a particularly important issue for long-term same sex couples, whose wills might not include the crucial sentence if they were signed many years prior to the 2015 Supreme Court marriage equality decision.
