Jennifer C. Rydberg, Attorney at Law
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How are omitted spouses dealt with in wills?

When a Washington State resident crafts a will, it is done under the applicable circumstances at the time. If, for example, the person was unmarried, then the future spouse might not be listed in the document. Life changes will inevitably occur and people sometimes fail to change their wills quickly enough to reflect those changes. One example is if there is an omitted spouse or omitted domestic partner. The law has a way of handling such a circumstance should it come up and people who are left behind after the testator has died should be aware of it.

A will that does not name a spouse or domestic partner who married the decedent after the will was executed and survives the person - known as the omitted spouse or omitted domestic partner - will get a portion of the estate even if he or she is not named in the will. This is true except in cases in which the omission of the person was apparently done purposely and that is clear in the document.

There are certain rules that are applicable with an omitted spouse or omitted domestic partner. The spouse or domestic partner who was identified in the will by name will be viewed as named whether there was an identification as a spouse or domestic partner. If there is a reference to the future spouse or future domestic partner, it is considered naming that person if they later married or entered into a domestic partnership. If there is a nominal interest in the estate, it will not be considered a provision for a spouse or domestic partner getting the interest.

The omitted person will receive the equal amount as to what he or she would have gotten under the law if the testator had died intestate (without a will). The court can decide that there will be a smaller amount given if there is evidence that this should be the case. When a person dies and the will does not reflect that they may have gotten married after the will was completed, it is important to understand how the omitted person will be treated. Discussing the case with a legal professional who understands probate in a variety of situations can be useful for dealing with heirs after the death of a loved one.

Source: app.leg.wa.gov, "RCW 11.12.095 -- Omitted spouse or omitted domestic partner," accessed on Nov. 15, 2017

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