While many married couples handle their estate planning matters together, they don’t have to. A husband or wife can create a will without the input or even knowledge of their spouse. However, that doesn’t mean that spouses don’t have protections against being written out of the other person’s will or that there aren’t other factors to consider in estate planning.
Find out more about how wills may be treated when two people are married. Then learn about how an estate planning attorney can help you protect your legacy or contest a will if you feel you are being treated unfairly after the death of a loved one.
Your Spouse Can Make a Will Without You Knowing It
Anyone who is 18 years or older can create a will in Pennsylvania. For a will to be valid, it typically needs to be executed in the presence of two witnesses. Those witnesses sign indicating they understood the person to be signing a will and that they witnessed the person doing so of their own accord.
Nowhere in the law does it say that a married person must notify his or her spouse that a will was created. It’s even possible that you might know about a will that your spouse created earlier in the marriage and that they created another one later that you don’t find out about until it’s time for probate.
In Pennsylvania, Surviving Spouses Have Rights
However, surviving spouses in Pennsylvania are protected by some rights. That means that your spouse probably can’t create a will that cuts you out of all inheritance.
Pennsylvania law provides married people with a right to election when their spouse dies. You can elect to receive a third of qualified property under this election. Qualifying property includes:
- Any property that would go through probate or be included in a will
- Property associated with income that the spouse was entitled to during the marriage
- Part of joint accounts the deceased spouse owned
- Annuity payments if the spouse that passed away was receiving payments from an annuity purchased during the marriage
- Gifts of more than $3,000 made within the year prior to the other spouse’s death
Life insurance payouts, retirement plans, and certain property transferred by the deceased spouse with the permission of the surviving spouse are not included in this election option.
You can assert your right to election after your spouse dies whether or not there is a will in place. If there is a will and you have not been left anything in it, you can use the election right to claim one-third of eligible property. Even if you have been left something in a will or trust, you can assert your right to election instead. However, if you go that path, you may forfeit your right to the property left to you via those other estate channels.
In some specific scenarios, you don’t have a right to this election. A legally binding prenuptial agreement or post-nuptial agreement may include language that waives this right. If you’re divorced, you also don’t have this right, and that’s also the case if you have deserted your spouse or failed to perform the duty of a spouse for a year or more.
Divorce Can Impact How a Will Is Enforced
Divorce can have other implications on wills and estate administration too. The impact of divorce on a will that includes provisions favorable to an ex-spouse may be to disqualify them. If there is not clear language in the will that the provisions were meant to stand even after a divorce, the court may consider them ineffective because you are no longer the spouse.
This is only the case if you get divorced after your spouse made the will. If your ex-spouse includes you in a will created after you are divorced, those provisions would stand.
However, if you are not yet divorced but divorce proceedings are in motion and grounds have been established, you may lose your right to anything left to you as a spouse in a will created before divorce proceedings began.
Working With an Estate Planning Attorney Can Help You Protect Your Legacy and Your Loved Ones
As you can see, wills, probate, and other estate matters can get quite complicated. Whether you want to plan your estate and create wills and other documents that stand the test of time or you want to assert your rights as a surviving spouse, working with an estate planning attorney can help.
Some of the things an experienced estate lawyer can help with include:
- Creating valid wills that hold up to legal scrutiny and help ensure your wishes are protected
- Advising you about the benefits of other estate options, including trusts—and helping you execute on those options if desired
- Helping you contest a will or assert your right to claim a spousal election if needed
If you are dealing with estate issues, feel you have been cut out of a rightful inheritance, or want to plan ahead to protect your legacy, reach out to Karen Ann Ulmer, P.C., Attorneys at Law to find out how we can help.