Starting estate planning early is a good idea. You are never too young to set up an estate plan.
However, sometimes people set up their estate plans when they are single and not planning on getting married anytime soon. They may leave their property to parents, siblings or other family members or friends.
There may then come a time when they get married and in all the excitement and business surrounding the wedding, updating estate planning documents is a task that can easily be forgotten.
This can lead to a situation where one spouse passes away with an outdated will that contains no mention of their spouse. What happens then? Does the spouse automatically get nothing?
The omitted spouse
According to Washington law, no. The law states that if a spouse or domestic partner is not named in a will, the spouse or domestic partner must still receive a portion of the estate.
The surviving spouse in this scenario is referred to as an omitted spouse. The law requires that an omitted spouse receive the same amount from the estate that they would have received if their spouse had died intestate, or without a will.
The exception to this law is if there is evidence that failing to include the spouse was intentional. The evidence must be clear and convincing.
Clear and convincing evidence can come in many forms. The court examines several factors when determining if the failure to include the spouse was intentional.
Some of these include any statements made prior to death about not leaving anything to the surviving spouse, the overall distribution of the remainder of the estate and the existence of any pre-nuptial or post-nuptial agreements. The will itself may also contain a clause stating that no property is left to the surviving spouse.
What if I don’t want to include my spouse?
If you are married and intend to leave your spouse out of your will, making sure your will includes this type of clause is the best way to prevent your spouse from claiming status as an omitted spouse after you pass away.
Another way to avoid your spouse gaining the status of an omitted spouse is to leave them something minimal in the will, such as one dollar or a small piece of property with little to no financial value.
Otherwise, if your intent is not to disinherit your spouse, is best to update your will to include your spouse. This should be done as soon as possible after your marriage.
This prevents the complications that often occur when a spouse is left out of a will and there is a question of whether this was intentional. The estate administration process can be lengthy and complex to begin with.
An issue with an omitted spouse only adds to the responsibilities of the estate executor and could potentially lead to full-blown probate litigation.