Generally, if you had a Will made during a previous marriage, and then get re-married, you may need a new Will. You definitely need to review the old one.
As we have discussed before, if you are married and die without a Will, your spouse and children inherit all of your assets according to a formula set out in Georgia law.* Also, without a Will, your spouse has a good chance of being appointed as your estate’s Administrator and as the Conservator of your minor children.**
The potential problem is if you have a Will made during your previous marriage.
If it is like most Wills made by married couples, your former spouse probably is named as Executor, Trustee, and Conservator for your minor children. Your ex may even be the sole beneficiary, inheriting all of your assets.
Getting divorced can change that. By default, Georgia law effectively removes a former spouse from a person’s Will by treating the ex as if they had died before (“predeceased”) the person who actually died. This means that any gifts to the former spouse and their appointment as Executor, Trustee, or Conservator are not valid.
However, it is possible to override that default, and for your ex to still receive assets and authority under your Will. Georgia law has some “magic words” that, in a Will, allow your former spouse to remain in your Will.
Generally, if a Will is made “in contemplation of” divorce, then your Ex probably is still included in your Will. If this is a concern (and it usually is if you are divorced), then you should have a estate/probate attorney review your Will as soon as possible.
One other issue (among many) is making sure your children receive gifts under your Will. If you get remarried, and if your Will gives everything to your new spouse, then it is possible that they could decide not to leave anything to your children. If this is your situation, then you may want to talk to an estate planning attorney about setting up a trust in your Will to make sure your children receive something. It doesn’t have to be complex, but you may want to consider setting some gifts aside immediately (instead of after your new spouse’s death).
Divorce and remarriage are tricky enough without having to worry about probate. But dealing with these issues now is better than leaving your family to deal with them later. If you are remarried, and if you have a Will made during a previous marriage, take a few minutes to sit down and make sure your Will does what you want it to do.
*This seems like a good place to remind you that, if you are divorced, your former spouse is not considered an heir and cannot inherit. However, it is still possible for your ex to be named as your Administrator, although it is unlikely. And, if your ex is the parent of your minor children, then the Guardianship & Conservatorship issue becomes more complicated.
**Guardianship of minors is a complex issue, and Guardianship of minors whose parents have divorced and remarried is even worse. So we’re going to ignore those issues here.
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The statements in this blog are generalities, and exceptions exist. And, as always, this post is not legal advice. If you have any questions about this information, please contact us.