By Attorney Kelly Jesson
What happens when you get married, but you don’t update your will?
The good news is that North Carolina law will prevent a surviving spouse from getting nothing with their spouses passes away. In North Carolina, we have what is called “an Elective Share.” That means that a spouse, whether or not there is a will, and whether or not they are omitted from a will, can elect to take a share.
The amount of the share is determined by statute. I will not go into specifics here, but if a spouse is omitted from a will, they can take a percentage of the deceased spouse’s estate (not just their probate estate, but everything, including life insurance proceeds, stocks and bonds, etc.), and the percentage is based upon the number of years they have been married.
So this is good – if you have a will and you get married, but you pass away before you can revise your will, your surviving spouse will not be left out in the cold. However, if you intend for your spouse to inherit 100% of your estate, you may need to revise your will.
Now, let’s say you have a will, you’ve left property to your spouse, but then you get divorced:
What happens if you do not update your will after a divorce?
Well, there’s good news here, too. In North Carolina, the divorced spouse will get nothing under the will, and if you have the spouse listed as an executor, trustee, or guardian, the spouse will not be permitted to serve as one of those, either. However, we still recommend that a divorced person revise their will. There may be other provisions in the will indirectly
impacted by the divorce that are not automatically revoked. For example, maybe your wife’s sister was to serve as your successor executor, and you’d prefer someone from your own family to serve now? Maybe you had provided for your husband’s step-child in your will and you would like to remove the step-child? These provisions are not automatically revoked upon divorce.
So, as you can see, North Carolina law does a great job protected spouses from unintentional disinheritance and from their ex-spouses inheriting. However, a revised Will will do an even better job at making sure your wishes are carried out. Give Jesson & Rains a call if you need to draft or update your documents!
By Attorney Kelly Jesson
At Jesson & Rains, we review our estate planning clients’ assets and liabilities in order to provide them with a thorough consultation as to the treatment of their assets and liabilities upon death.
Essentially everything a person owns when they die is included in their “estate,” including assets that pass outside of probate. This is also called your “taxable estate.” A “probate estate” consists of assets that go through court-supervised probate before getting to beneficiaries. During the probate process, the decedent’s will is filed, assets are collected, bills are paid, and then whatever is left goes to the beneficiaries per the will. Probate assets are singularly owned real, personal, and business property without rights of survivorship and without a beneficiary designated.
However, a lot of assets pass outside of the probate estate upon death. Life insurance or retirement plans with named beneficiaries, jointly owned property with rights of survivorship, and any other accounts or securities with pay on death or transfer on death designees (POD or TOD) are not included in the probate estate (unless the decedent names the estate as the beneficiary or the beneficiary has predeceased the decedent without a successor named).
Why does this matter? How assets pass at death determine whether a person could benefit from a will or trust. Sometimes, it’s necessary for attorneys to retitle assets in order to achieve estate planning goals and ease of transfer at death.
Each client is different. Some have complex interests in various types of property, some own property singularly or are not married, and some have a lot of debt that is cause for concern. Without a thorough consultation, your estate plan may not be complete. It is important for the attorney to get a complete picture in order to tailor your estate plan to your needs and wishes. Give Jesson & Rains a call for more information!
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