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How Marriage May Impact Your Estate Plan

Jan. 31, 2013

Last week I wrote about divorce and how that impacts your Will and your overall estate plan, so it is only fitting that I write this week about how marriage affects your Will and your estate plan.

Under Oregon statutes, if you have an existing Will, and then get married, and you are then survived by your (new) spouse, then your Will is automatically revoked by statute (with two exceptions). This is a shock for most people. It can be years later when they come into my office and find out that the Will they thought they had in place all of these years may ultimately not be honored. The usual solution is to create a new Will or Revocable Living Trust for them.

The exceptions to the automatic revocation are if: 1) the Will evidences an intent that it not be revoked by the subsequent marriage, or was done in contemplation of marriage; and 2) the person making the Will and his or her (new) spouse make a contract before their marriage (such as a prenuptial agreement) that either provides for the spouse or indicates that they will not receive any part of the estate.

So if a person is contemplating marriage, and wants to complete a Will prior to marriage, we can add in language to the Will that will keep it in effect despite the upcoming marriage. In other words, we can overwrite the normal statutory revocation of the Will.

In contrast to a Will, a Revocable Living Trust is not automatically revoked by the subsequent marriage of the settlor/trustor (the person who set up the Trust), unless otherwise stated in the Trust document itself.

Also, keep in mind that with marriage there may be name changes and other changes that need to be integrated into your estate plan.

The rules surrounding Wills and Trusts can be complicated and counter-intuitive, and you are well-advised to seek help from a competent attorney. Also, the above rules are just another indication that when you have any major changes to your estate plan, such as a marriage, death, or divorce, you need to check with your attorney to see if any changes need to be made. Taking care of your loved ones, even after you are gone, will be one of the greatest legacies you leave behind.