How to Change Your Will After Marriage
Quick Answer
After marriage, you should update your will to include your new spouse, revise beneficiary designations, update your executor and guardian choices if needed, and account for any changes in property ownership. In many states, marriage automatically revokes a pre-existing will or gives the spouse a statutory share.
Step-by-Step Guide
- 1Understand how marriage affects your existing will
In many states, getting married partially or fully revokes a will that was executed before the marriage. Under the Uniform Probate Code (adopted by about 18 states), a premarital will is not revoked, but the new spouse is entitled to an "omitted spouse" share, which is typically equal to what they would receive under intestacy law. In other states (like Massachusetts and parts of Georgia), marriage may revoke the entire will. Check your state's law immediately after marriage.
- 2Decide whether to amend or replace your will
You can change your will by adding a codicil (a formal amendment) or by creating an entirely new will. A codicil is appropriate for minor changes, such as adding your spouse as a beneficiary or changing the executor. However, if you need to restructure your entire estate plan to account for marriage, blended family dynamics, or significant shared assets, creating a new will is generally cleaner and reduces the risk of inconsistencies between the original will and amendments.
- 3Add your spouse as a beneficiary
In most states, a surviving spouse has a legal right to a minimum share of the estate regardless of what the will says. This is called the "elective share" or "forced share," and it typically ranges from one-third to one-half of the estate (or, in community property states, the spouse already owns half of all marital property). Even if you want to leave your spouse less than the elective share, your will should explicitly acknowledge your spouse and state your intentions to avoid an omitted spouse claim.
- 4Update your executor and guardian designations
Consider whether your spouse should serve as executor (personal representative) of your estate. Many married couples name each other as primary executor with a trusted friend or family member as successor. If you have minor children from a prior relationship, carefully consider the guardian designation; your new spouse may or may not be the appropriate choice, depending on the children's other living parent and family dynamics.
- 5Address blended family considerations
If either spouse has children from a prior relationship, estate planning becomes more complex. Consider using a trust (such as a QTIP trust or bypass trust) to provide for your surviving spouse while preserving assets for your children. Without proper planning, your assets could pass entirely to your new spouse and then to their children or a future spouse, effectively disinheriting your own children.
- 6Update beneficiary designations on all accounts
Beneficiary designations on retirement accounts (401(k), IRA), life insurance policies, and payable-on-death bank accounts override your will. After marriage, review and update all beneficiary designations. Note that federal law (ERISA) requires your spouse to be the beneficiary of your 401(k) and most employer-sponsored retirement plans unless your spouse signs a written waiver. If you want to name someone other than your spouse, obtain the spousal waiver in writing.
State-by-State Differences
| State | Key Difference |
|---|---|
| California | California is a community property state. Each spouse owns half of all community property (property acquired during marriage). A premarital will is not revoked by marriage, but the omitted spouse is entitled to a share of the estate equal to what they would receive under intestacy (Cal. Prob. Code 21610). This can be up to one-half of the community property and one-third to one-half of the separate property. |
| Texas | Texas is a community property state. Marriage does not automatically revoke a premarital will, but an omitted spouse may claim their intestate share (Tex. Est. Code 201.003, 301.052). The surviving spouse's community property rights are separate from the will. Texas also has a homestead right that protects the surviving spouse's right to the family home regardless of the will's terms. |
| Florida | Marriage does not revoke a premarital will in Florida, but the new spouse is entitled to an elective share of 30% of the estate (Fla. Stat. 732.2065). This elective share applies to the "elective estate," which is broader than just probate assets and includes certain nonprobate transfers. Florida also grants the surviving spouse homestead rights in the family home (Fla. Const. Art. X, Sec. 4). |
| New York | Marriage does not revoke a premarital will in New York, but the surviving spouse has a right of election equal to the greater of $50,000 or one-third of the "net estate" (N.Y. Est. Powers & Trusts Law 5-1.1-A). The "net estate" includes certain nonprobate assets. New York also protects the surviving spouse's right to occupy the family home for at least 40 days after death. |
| Illinois | In Illinois, a will executed before marriage is not revoked by subsequent marriage, but the omitted spouse may receive their intestate share unless the will shows an intent to exclude or the spouse was provided for by a prenuptial agreement (755 ILCS 5/2-2). The surviving spouse's elective share is one-third of the estate if there are descendants, or one-half if there are no descendants (755 ILCS 5/2-8). |
Common Mistakes to Avoid
Assuming your premarital will still fully controls your estate after marriage
Consequence: In many states, your new spouse can claim an "omitted spouse" share or exercise an elective share right, overriding your will's terms. Your intended beneficiaries may receive significantly less than you planned. In states that revoke premarital wills upon marriage, dying without updating your will means dying intestate.
Forgetting to update beneficiary designations on retirement accounts and life insurance
Consequence: Beneficiary designations override your will. If your ex-partner or another person is still listed as beneficiary on your 401(k), IRA, or life insurance policy, they will receive those assets regardless of what your will says. This is one of the most common and costly estate planning oversights.
Not addressing the ERISA spousal consent requirement for retirement accounts
Consequence: Under federal law (ERISA), your spouse is automatically the beneficiary of your 401(k) and most employer-sponsored retirement plans. If you want to name someone else, your spouse must sign a written waiver. Without this waiver, the non-spouse beneficiary designation is invalid and the funds will go to your spouse.
Failing to plan for a blended family
Consequence: Without proper planning (such as a QTIP trust), your assets may pass entirely to your surviving spouse and then to their children or a subsequent spouse, leaving your own children from a prior relationship with nothing. This unintended disinheritance is one of the most common consequences of inadequate estate planning in second marriages.
Documents You'll Need
Last Will & Testament
Prenuptial Agreement
Power of Attorney
Frequently Asked Questions
Related Guides
This website provides legal information, not legal advice. The information on this page is for general informational purposes only. No attorney-client relationship is formed by using this site. Laws vary by jurisdiction and change frequently. For advice specific to your situation, consult a licensed attorney in your state.