As a surviving spouse, you may have questions about your rights and responsibilities regarding your deceased partner's estate, including their will. One common question is, "Can a spouse change a will after death?"
We’ll explain everything you need to know about whether or not changes can be made.
Key Takeaways
A will can only be changed while a person is still alive, so a surviving spouse cannot alter it.
A will can be contested if the surviving spouse believes it’s invalid or was created under questionable circumstances.
Keeping your estate plan updated can help ensure no one contests your will after you pass away. Trustworthy can help you keep all of your important documents organized.
Can a Spouse Change a Will After Death?
As Rudolf J. Karvay, a Probate Attorney in Garden City, NY, states:
"No. A will cannot be changed after the testator dies. A person may only change his or her will while alive."
There are a few exceptions to this rule, but generally, the terms of a deceased person's will must be followed as closely as possible.
This is true even if the surviving spouse disagrees with the will's contents or feels it’s unfair.
The Importance of Respecting the Deceased's Wishes
The inability to change a will after death highlights the importance of respecting the deceased's wishes and intentions.
A will represents a person's final instructions for how they want their legacy to be carried out.
The surviving spouse and other family members are responsible for honoring those wishes to the best of their abilities.
Attempting to change a will goes against the deceased's desires and can lead to legal challenges and disputes among heirs. This can be costly, time-consuming, and emotionally draining for all parties involved. Plus, they may damage family relationships beyond repair.
The surviving spouse must approach the situation with a commitment to upholding their late partner's wishes, even if they don't align with their own preferences.
Exceptions and Special Circumstances
A spouse generally cannot change a will after the death of their partner.
However, a few notable exceptions and special circumstances may allow for some modifications or challenges to the document.
Contesting a Will
If a surviving spouse believes their deceased partner's will is invalid or was created under questionable circumstances, they may choose to contest the will in court.
Some common grounds for contesting a will include:
Lack of understanding: The person was not of sound mind when they created the will due to illness, dementia, or other cognitive impairments.
Undue influence: Someone pressured or manipulated them into making specific provisions in the will against their true wishes.
Fraud or forgery: The will was created or signed under fraudulent circumstances, or the signature was forged.
Improper execution: The will does not meet the legal requirements in the state, such as not having the proper number of witnesses or not being signed.
If a will is successfully contested, the court may declare it invalid and distribute the deceased's assets according to the state's laws or a previous valid will, if one exists.
Contesting a will can be a lengthy, expensive, and emotionally draining process with no guarantee of success.
It can also create lasting rifts among family members. It should only be considered as a last resort if there are genuine concerns about the will’s validity.
Spousal Elective Share
Some states have laws allowing a surviving spouse to claim a portion of the deceased's estate, even if the will leaves them less than this amount or nothing at all. This is known as the "spousal elective share" or "widow's share."
The specific rules and percentages vary by state but typically range from one-third to one-half of the estate.
In some cases, the surviving spouse may need to file a court petition to claim their share, while in others, it may be automatically granted.
The spousal elective share ensures surviving spouses are not left without financial support if their deceased partner's will excludes them or leaves them a minimal amount.
However, claiming the elective share may come with certain restrictions or obligations. These include waiving the right to inherit under the will or giving up other benefits.
Mutual Wills and Contracts
In rare cases, spouses may have created mutual wills or agreed not to change their wills without the other's consent.
This is most common in second marriages where each spouse wants to provide for their children from previous relationships.
If a surviving spouse attempts to change a mutual will or breaches a contract not to change their will, the affected beneficiaries may have grounds to challenge the changes in court.
However, proving the existence and validity of such agreements can be difficult. The outcome of these cases depends on the specific facts and circumstances.
Why a Spouse Might Want to Change a Deceased Partner's Will
There are several reasons why a surviving spouse might wish to change or modify their deceased partner's will after their passing.
The Will Does Not Reflect the Deceased’s Wishes
One common situation is when the surviving spouse believes the will does not accurately reflect the deceased's wishes or intentions.
For example, if the couple discussed making changes to their estate plan but the deceased passed away before updating their will, the surviving spouse may feel compelled to honor those wishes. They might seek to modify the will accordingly.
The Surviving Spouse Believes the Will Is Unfair
Another scenario is when the surviving spouse feels the will treats them unfairly or does not adequately provide for their needs. This can be particularly challenging if the couple has a strained relationship or if there are children from previous marriages involved.
In some cases, the surviving spouse may believe they deserve a larger share of the estate. Or, they think certain assets should be passed directly to them instead of being distributed among other beneficiaries.
Circumstances Have Changed
A surviving spouse might also seek to change the will if circumstances have changed since the document was created. For instance, if one of the beneficiaries named in the will has passed away, the surviving spouse may wish to redirect their inheritance to other family members or charities.
Similarly, if the deceased's estate has grown or shrunk in value, the surviving spouse may feel the original distribution plan no longer makes sense.
In some cases, the surviving spouse may simply disagree with the choices made in the will. This can be especially true if the couple had different philosophies about money, family, or charitable giving. The surviving spouse may seek to change the will to reflect their own vision of how assets should be allocated.
A surviving spouse may have strong feelings or opinions about their deceased partner's will. However, they are generally not permitted to change or rewrite the document after the fact. Any modifications to the will must typically go through formal legal channels.
Updating Your Own Estate Plan
The death of a spouse is a significant life event and should prompt you to review and update your own estate plan. This includes your will and beneficiary designations on life insurance policies, retirement accounts, and other assets.
Some key considerations for updating your estate plan after the loss of a spouse include:
Naming a new executor or trustee to manage your estate
Updating beneficiaries to reflect your current wishes and family situation
Making provisions for the care of minor children or dependents
Reviewing and updating healthcare directives and powers of attorney
Ensuring your assets are titled properly and will pass to your intended beneficiaries
Considering the tax implications of your estate plan and making any necessary adjustments
Working with an experienced estate planning attorney can help ensure your plan is comprehensive, legally valid, and reflective of your unique needs and goals.
The Importance of Proper Document Storage and Organization
Dealing with a spouse's death and settling their estate involves a significant amount of paperwork and recordkeeping. From the will itself to financial statements, legal documents, and sentimental items, it's best to have a secure and organized system for storing and accessing these important materials.
This is where Trustworthy comes in. Our digital storage platform provides a safe, centralized hub for all your vital documents, making it easy to locate what you need when you need it. With Trustworthy, you can:
Securely store and organize your spouse's will, trust documents, and other estate planning materials
Upload and categorize financial statements, account information, and legal records
Share access with trusted family members, advisors, or professionals assisting with the estate settlement process
Set reminders for important deadlines and tasks related to the estate's administration
Access your documents from anywhere using our mobile app or web portal
Ensure that your own estate plan is up to date and easily accessible to your loved ones if needed
By leveraging Trustworthy's platform, you can streamline the estate settlement process, and reduce stress and confusion. You also gain peace of mind, knowing your most important documents are protected and available when needed.
Sign Up For Your Free Trial Today
By taking a proactive and informed approach to managing your spouse's estate and your own affairs, you can honor their legacy, protect your interests, and begin to build a new chapter in your life. With Trustworthy by your side, you'll have the tools and support to secure your most important documents and move on to the future with greater clarity and confidence. Sign up for your free trial today.
Frequently Asked Questions
What happens if a deceased spouse's will is found to be invalid?
If a will is successfully contested and found invalid, the deceased's assets will typically be distributed according to the state's laws or a previous valid will.
How long does a surviving spouse have to contest a will?
The time limit for contesting a will varies by state but generally ranges from a few months to a few years after the will is admitted to probate.
What should a surviving spouse do if they can't locate their deceased partner's will?
If a will cannot be found, the surviving spouse should check with the deceased's attorney, the probate court, or any known safe deposit boxes. If no will is discovered, the estate will likely be settled according to state laws.
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