You Developed an Estate Plan but You Experienced a Major Life Change. Do You Need to Change Your Will?
You’ve done your homework and developed an estate plan. But then you have a major life change—a divorce, a marriage, or the birth or adoption of a child. What should you do next? It is advisable to alter your will in accordance with such a change for two major reasons. First, such an event will likely change the way you want your assets dealt with under your will. Second, even if you still wish for your will to function in the same manner as previously set forth in your will, the default rules in the Maine Probate Code may operate to alter the way your estate is administered due such a change.
What Is the Effect of a Marriage on a Pre-Existing Will?
If a decedent fails to provide for his or her spouse who married the decedent after the execution of the will, the default rules in the Maine Probate Code will impact the estate plan as follows: the surviving spouse will be entitled to the share of the estate that he or she would have received if the decedent had left no will, unless it is apparent from the will that the omission was intentional or it is clear that the decedent intentionally, in lieu of provisions in the will, provided for the surviving spouse exclusively outside the will. In other words, absent clear intent to exclude the surviving spouse from the will, the default rules of intestate succession provided by the Maine Probate Code will govern what the surviving spouse is entitled to.
The share of an estate to which a surviving spouse is entitled under the rules of intestate succession depends, in part, on who else has survived the decedent. If there are no issue (i.e., children, grandchildren, etc.) or parents surviving the decedent, the spouse takes the entire estate. If the decedent is survived by parents, the spouse receives the first $50,000 plus one-half of the remaining balance of the intestate estate. If there are surviving issue, the spouse’s share depends on whether the decedent’s issue are also issue of the surviving spouse or not. When the issue of the decedent are also all issue of the surviving spouse, the surviving spouse receives the first $50,000 plus one-half of the remaining amount of the intestate estate. On the other hand, when one or more of the decedent’s surviving issue are not also issue of the spouse, the spouse receives one-half of the intestate estate.
Because a different scheme is often desired than the default rules under intestate succession with respect to a spouse, many clients will decide to amend a will in the event of a marriage. Additionally, it is important to consider desired changes to beneficiary designations after a marriage to deal with assets that will pass outside the will.
What is the Effect of a Divorce After the Execution of a Will?
When an individual passes after divorcing but does not update a will that was executed prior to the divorce, the will shall be read as though the surviving former spouse predeceased the decedent. Assets will past to the other beneficiaries as provided for in the will. However, there are occasional instances where an individual still wishes for his or her estate plan to still include the ex-spouse. If this is the case, the plan should be so updated to reflect these wishes despite the divorce.
Although the default rules of the Maine Probate Code function to remove an ex-spouse from a will, assets with beneficiary designations are treated differently. If an individual does not intend for the ex-spouse previously named a beneficiary during the marriage on various assets, he or she needs to be sure to make those changes. Otherwise, the beneficiary designation of the ex-spouse made during the marriage could stand and the ex-spouse would be entitled to the assets. Therefore, it is important to revisit beneficiary designations promptly in the event of divorce.
What is the Effect of a Child Born or Adopted After the Execution of a Will?
If a decedent fails to provide by will for any of his or her children born or adopted after his or her will is executed, that child is entitled to the value equal to what he or she would receive had the decedent died without a will. There are, however, a few exceptions where it appears the child was intentionally left out of the will, it appears that when the will was executed the decedent had at least one child and devised substantially all of his or her estate to the other parent of the later born or adopted child, or the decedent provided for the child through a transfer outside of the will with the intent that the transfer be in place of including the child in the will.
When a decedent does not leave a will, each child is entitled to the part of the estate not passing to the surviving spouse, or the entire estate if there is no surviving spouse. The part of the estate passing to such children shall be divided per capita at each generation which means that the part of the estate in issue is divided into the number of shares of surviving children and previously deceased children of the decedent (or if no surviving children, to the nearest degree of kinship with surviving heirs). Each surviving child is entitled to one share. Then, the remaining shares for the any of the deceased children are combined and divided equally among the children of the decedent’s predeceased children.
Because the Maine Probate Code can function to alter your estate plan upon the occurrence of a major life event, it is important to seek the advice of an attorney in making adjustments to your will and other related documents. In fact, you should revisit all of your documents that deal with distribution of assets upon your death in order to ensure your wishes are followed.
Tamlyn Frederick is an attorney in Portland, Maine who practices in the field of estate planning.