This will form is for a married person with at least one biological or adopted child. It is written with the assumption that you will leave the bulk of your estate to your spouse. This form also allows you to name alternate beneficiaries and an alternate executor should your spouse predecease you or not survive you by more than sixty days. These alternate beneficiaries may be your child(ren). Each spouse should complete and sign a separate will form.
Appropriateness of Form; Unusual Situations
This will form is appropriate if you are eighteen years of age or older, of sound mind, and your estate is small enough not to be subject to state or federal death taxes. If you have significant assets; have a business you wish to pass on to the next generation; cannot read, sign your name, or see; have a mental disability, have been determined to be incapacitated, or have a conservator or guardian; or have a domestic partner or gay marriage, then this will form may not be appropriate for you, and you should consult an estate planning attorney in your state for specific legal advice pertaining to your circumstances.
Statutory Protection of the Spouse
The majority of states have enacted laws that protect a spouse from total disinheritance. These laws vary from state to state. For instance, in community property states, the spouse is automatically entitled to half of the assets acquired during the marriage. In other states, spouses who are disinherited can receive one fourth to one half of the testator’s estate if they contest the will in court. You should consult the laws of your state to determine how a spouse might be protected from disinheritance. As stated above, if you wish to disinherit your spouse, you should seek legal advice.
The Effect of Divorce
In the majority of states, divorce revokes any bequest made to a spouse or the family member of a spouse in a will executed before the parties were granted a divorce. This means property left to a spouse or the family member of a spouse would pass to the alternate beneficiary or into the residue of the estate if the testator did not change his or her will prior to their death. Whether you wish to change the beneficiaries or not, it is good practice to execute a new will following a divorce.