How Divorces Impact Wills Executed Before Marriage

We always find out from divorce clients whether they executed a Will prior to their current marriage.  Some divorce clients think that a Will executed prior to marriage that does not provide for the soon-to-be divorced spouse has their desired result of omitting that spouse from inheriting if the client dies before the divorce is final.  Not so.  A Will omitting a future spouse executed before marriage, is known as pretermission and is addressed in § 43-8-90 of Alabama’s Probate Code.

          § 43-8-90 allow spouses who are not included in Wills executed before marriage to receive an intestate share of decedents’ estates unless (i) it appears from the Will that the omission was intentional or (iii) the testator provided for the spouse by transfer outside the Will and the intent that the transfer be in lieu of a testamentary provision is reasonably proven.    Divorce lawyers should be careful to advise clients in this position that their wills will not accomplish their goal of disinheriting their spouses unless the Will complies with the statute’s requirements.  For these and other reasons, it is always a good idea to review a divorce client’s estate plans that might require revisions or action after separation, but before divorce decrees are entered.