Revocation Of Will as to Surviving Spouse

Under Nevada law, if an individual marries and has a Last Will and Testament that predates the marriage, a revocation of a Will as to the surviving spouse may take place when the individual dies in certain circumstances.  For example, under Nevada Revised Statute 133.110 if a person marries after making a Last Will and Testament and the spouse survives the maker, the Last Will and Testament is revoked as to the spouse unless:

1. Provision has been made for the spouse by marriage contract;
2. The spouse is provided for in the Last Will and Testament, or in such a way mentioned therein as to show an intention not to make such provision; or
3. The spouse is provided for by a transfer of property outside of the Last Will and Testament and it appears that the maker intended the transfer to be in lieu of a testamentary provision.

When a Last Will and Testament is revoked as to the spouse, the spouse is entitled to the same share in the estate of the deceased spouse as if the deceased spouse had died without a Will.  This will result in the community property interest of the decent to pass to the surviving spouse, and all, one-half or one-third of the sole and separate property of the decedent to pass to the surviving spouse depending on if the decedent was survived by issue, parents or siblings. This may not be what the decedent intended.  The remaining provisions of the Last Will and Testament remain intact to the extent those provisions are not inconsistent with the rights of the surviving spouse.

Accordingly, when one is contemplating marriage, he or she should consult with an experienced estate planning attorney regarding the ramifications a marriage may have on his or her estate plan.

Attorney John Mugan