Re-Marriage Does Not Automatically Revoke a Will (or Does It?)

                   

By David C. Booth and Kerry D. Smith

McMurry & Livingston, PLLC

Many times persons prepare a Last Will and Testament to provide for their surviving spouse or, if the spouse is predeceased, then to provide for their children.  But what happens if the spouse dies and the surviving spouse re-marries?  Prior to July 15, 1998, if a person re-married, their old Will was automatically revoked.

However, the law was changed so that now, under current Kentucky law, a Will is not automatically revoked by the marriage (or remarriage) of the person who made the Will.  See KRS 394.090.  That version of the statute went into effect on July 15, 1998.

This change in the law caused an interesting question to arise: Which version of the statute should be applied if a Will were executed at the time the old version of the statute was in effect but that person died when the new version of the statute was in effect?  The answer would have a significant impact on the deceased’s loved ones.

In 2005, the Kentucky Court of Appeals determined that the version of the statute in effect at the time that the Will was signed will determine whether or not a subsequent remarriage had revoked that Will.  In the case of Riggins v. Floyd, 189 S.W.3d 147 (Ky.App. 2005), Mr. Riggins executed his Will in 1990, later married, and then he died in 2002.  The old version of the statute (pre-1998) was in effect at the time that the Will was signed.  But the new version of the statute (post-1998) was in effect at the time Mr. Riggins died.  Since Mr. Riggins failed to prepare a new Will after his marriage, the Court of Appeals found that the Will executed prior to his marriage was revoked by the old version of the statute that had been in effect at the time the Will was executed.  As a result, the Riggins court determined that Mr. Riggins had no Will and died intestate.  So state law (instead of Mr. Riggins’s Will) would determine who would receive Mr. Riggins’s property after his death.

The Riggins case highlights the need to prepare new estate planning documents, including a Will, after a major life-changing event, such as a remarriage.

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