Marriage, Cohabitation and Your Will

With the implementation of the Wills Estates and Succession Act (“WESA”) on March 31, 2014, marriage no longer automatically revokes a will.  Prior to WESA, marriage revoked a will unless the will was made in contemplation of the marriage.  The assumption was that if the newlyweds passed away before they returned from their honeymoon, they would not intend that their pre-marriage wills should apply.

Wills made prior to WESA that were automatically revoked by marriage prior to March 31, 2014 are not “revived” or made valid again by WESA.

Prior to WESA, a separation without divorce had no effect on a will.  After WESA, a legal separation results in the will being read as if the other spouse predeceased the will-maker. After WESA, the end of a common law marriage-like relationship also results in the will being read as if the former common law spouse predeceased the will-maker.

There is a potential pitfall in WESA because after a common law, marriage-like relationship ends, the former common law spouse is deemed to have predeceased the will-maker by operation of this statute.  A subsequent reconciliation of the same common law couple does not revive or restore the validity of the gift in the will to the reconciled common law spouse.  To be safe, if a will-maker makes a gift to his or her common law spouse, and if there is a separation followed by reconciliation, it would be prudent for the will-maker to make a new will.

These provisions of WESA are subject to an expression of a contrary intention in the will.  Will-makers are free to specify that gifts to their former spouses continue to be valid notwithstanding a divorce or separation.

If you have questions about estate planning or estate litigation, please feel free to contact one of the lawyers in our Wealth Preservation + Estate Litigation Practice Group.