"Gold digger" trap eliminated

by Henry Lane, Lane & Hamer 

One of the great estate planning legends is the story of the attractive young woman who married a wealthy old widower.  Like Anna Nicole Smith, our young maiden undoubtedly married only for love.  But despite the depth of her affection, she had the presence of mind to postpone the wedding until after our love-struck geezer prepared a new will, leaving his entire estate to her.  Once she confirmed that she was named as the sole devisee in the new will, she agreed to tie the knot.  After an intense but blissfully short married life, our wealthy bridegroom expired and his young bride was left to mourn her loss.  But it was only after the funeral that she discovered the actual extent of her loss.

Old Massachusetts law always provided that marriage cancels a will, unless the will specifically referenced that it was made in contemplation of marriage.  Since our wealthy widower had good legal advice, his will named his young love as his devisee, but made no mention of the impending nuptials and therefore, it was automatically revoked when he married. Our young widow was not left totally destitute of course, since she was entitled to a widow's share of the late husband's estate but substantially less than she would have received if the will had been effective.

With the adoption of the Massachusetts Uniform Probate Code effective March 31, 2012, marriage is no longer a change of circumstance that will automatically revoke a will.  A will prepared before marriage now remains valid, and if the will does not include provisions for the new spouse, the new spouse only has the right to a widow or widower's share of the decedent's estate if the old will did not leave the estate to his or her children by a prior marriage.  Obviously, even though marriage no longer revokes a will, it is still a significant change in circumstances that would warrant the making of a new will in most cases.

The traditional effect of the other two circumstances that revoked all or parts of a will remain.  Divorce continues to revoke any provisions in a will for a former spouse, as well as the designation of the former spouse as the beneficiary of trusts or life insurance policies.  However, the general rule can be modified by agreement or court decree.  For example, divorce decrees often require a spouse to maintain life insurance for the benefit of a former spouse to ensure payment of alimony or child support in case the spouse with greater earning capacity meets an untimely end.  

The other circumstance that continues to revoke certain provisions of a will is the felonious and intentional killing of the decedent. To ensure that individuals don't benefit from their criminal activity, any provision in a will for the decedent's killer or his or her accomplices is automatically revoked.  An heir need not be convicted of first or second degree murder in a criminal case in order to lose an inheritance.  Since the standard of proof is different in criminal and civil cases, a person who is acquitted in a criminal case because his guilt was not established beyond a reasonable doubt, could still lose an inheritance if a probate court determined that even though guilt was not proven beyond a reasonable doubt it was established by a preponderance of the evidence, a lower civil standard.  Somewhat surprisingly, the law does not cancel gifts to individuals responsible for accidental death or even manslaughter.