Estate Planning, Re-Marriage and Divorce: A Massachusetts State of Mind and a Cautionary Tale

If you are contemplating a new marriage, re-marriage, or divorce, do not neglect to review and revise your estate plan to adapt to this change in your life.

A few years ago a client came to me for his estate and long-term care planning, following the death of his wife. Their marriage was a last act of love by a single woman who agreed to marry her man as she lay on her deathbed. They both knew she had provided for him in her will while she was single during their long live-in relationship. They never considered consulting an estate planning attorney prior to their marriage because they both believed the will done for the then-single woman in favor of the then-single man was sufficient.

Following his wife’s death, the man presented her will for probate. Much to his shock, her ex-husband and children contested the will and its bequests to my client, based upon Massachusetts General Law Ch. 191, Section 9, which states, “The marriage of a person shall act as a revocation of a will made by him previous to such marriage, unless it appears from the will that is was made in contemplation thereof.” (see statute below)

Although the ex-husband had no rights under Massachusetts law, the children did. Technically, my client’s wife voided her will naming him as sole beneficiary when she married him. The will, signed long before the event of the marriage, was not made “in contemplation” thereof. The case eventually settled, but my client did not receive the estate he had anticipated from his wife.

While statutes and their interpretation vary from state to state, this story presents a cautionary tale to those who neglect to review their estate plans in the context of a new marriage in any state. The effect of divorce on a person’s estate plan may by equally devastating.

If you are contemplating marriage, re-marriage following divorce, or divorce, you should have your current estate plan reviewed by an estate planning attorney to ensure that it still works for you.

Chapter 191: Section 9: Effect of marriage, divorce or annulment.

Section 9. The marriage of a person shall act as a revocation of a will made by him previous to such marriage, unless it appears from the will that it was made in contemplation thereof. If the will is made in the exercise of a power of appointment and the real and personal property subject to the appointment would not, without the appointment, pass to the persons who would have been entitled to it if it had been the estate and property of the testator making the appointment and he had died intestate, so much of the will as makes the appointment shall not be revoked by the marriage.

If, after executing a will, the testator shall be divorced or his marriage shall be annulled, the divorce or annulment shall revoke any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse, as executor, trustee, conservator or guardian, unless the will shall expressly provide otherwise. Property prevented from passing to a former spouse because of revocation by divorce shall pass as if a former spouse had failed to survive the decedent, and other provisions conferring a power or office on the former spouse shall be interpreted as if the spouse had failed to survive the decedent. If provisions shall be revoked solely by this section, they shall be revived by the testator’s remarriage to the former spouse. A decree of separation which does not terminate the status of husband and wife is not a divorce for the purpose of this section.

This section shall not apply to a will made under the provisions of chapter one hundred and ninety-one B unless the will otherwise provides.