Ask the Probate Judge—Divorce and Wills
Rudd, appeared August 8, 2002, Albuquerque Journal, Business Outlook
Reprinted with permission
Editor's note: This column may not be quoted or reproduced
in whole or part without express written permission of the author.
Q: How long is a will in effect? My Ex and I made wills 20 years ago, when we had young children. We've since divorced and he's remarried. I have a new will but he refuses to make a new will. He says the children will get half of everything anyway. There are no children from his new marriage--only his wife's adult children. N.T.S.
Milk has an expiration date; wills do not. Your ex-husband's twenty-year-old will remains in effect unless he revokes it or creates a new will. I'm assuming your ex-husband is still in New Mexico.
Presumably his old will devised property to you, but if you did not survive him, then to his children in equal shares. However, any bequests made to you in his old will are no longer legally binding. Divorce or annulment automatically excludes an ex-spouse from inheriting under the terms of a will, payable on death (POD), transfer on death (TOD) or other beneficiary accounts, joint tenancy, or from serving as a personal representative. If his will still exists, then, in the above example, his children would be next in line to inherit.
If your husband dies without a valid will, New Mexico's intestate laws govern who receives his probate estate. The new wife would receive all of their community property. She would be entitled to one-quarter of his separate property with the other three-quarters passing to his own children (I am assuming he did not adopt his new wife's children). If he wanted to include his stepchildren as recipients of his estate, he would need a new will because intestate laws do not provide for stepchildren.
Another consideration is how your ex-husband's assets are titled. Previous columns have explained that not everything passes through a probate or is affected by a will. For example, suppose your ex-husband adds the new wife's name to their house as a joint tenant with right of survivorship. He then dies. The house will pass automatically to the new wife whose name is on the deed. If he has added the new wife's name to all of his assets, then she, not his children, will receive the assets if he dies first, no matter what his will might say.
New Mexico also has an "omitted spouse" law that entitles a new spouse, who marries the testator of a will after he made his will, to an intestate share of the estate. However, if the old will names the testator's children as recipients, the new wife probably would not be entitled to this intestate share.
Updating a will after a divorce or annulment is wise, especially if you want to provide for your ex-spouse in the will (hey, some people do).
© 2002, Merri Rudd & Albuquerque Journal, All Rights Reserved