Will marital property laws override a will ?

Sam71 asked...

My mother passed away 2 years ago. My father has met someone else and is contemplating marriage to her maybe within the next year. He is wanting to make up a will to be sure my mother's things are passed down to us kids upon his death. If he remarries will his will still stand or does it then too become marital property?

Expert Answer

Your father, or you, need to check out the law regarding marital property and wills in the state where your father leaves. The majority of states follow what is called "common law." In most all common law states, a surviving spouse has the right to receive a certain portion of the deceased spouse's property, even if the deceased spouse's will provided otherwise. A minority of states, mostly in the west, follow "community property" law. In these states each spouse owns 50% of property the couple acquires (with a few exceptions) during the course of the marriage. Property either spouse owned as his or her separate property before the marriage remains the separate property of that spouse. (Unless that spouse decided to make it community property.)

In whatever state your father lives, I suggest it would be wise for him and his new "someone" to prepare what is called a "Prenuptial Agreement," providing that your mother's property remains owned solely by your father, as his separate property (which he can leave by his will), and the new "someone" agrees she has no interest in that property. Of course the two can also make any other property agreement they want to in their prenuptial agreement.

Your father could either hire a lawyer to prepare a prenuptial agreement, or he could save the lawyer's fees by using the excellent book,"Prenuptial Agreements," by Nolo Press (Berkeley, Ca.)

[Disclosure: I have written several books for Nolo, although I have no interest in "Prenuptial Agreements,"]