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Prior to recent court decisions, including the most recent United States Supreme Court decision in Obergefell v. Hodges, in which the federal courts have legalized gay marriage across the United States, one prominent challenge facing gay couples was the problem of inheritance when one person passed away. Due to laws that prevented unmarried, gay partners from inheriting property from each other, the gay community was particularly conscious of the need to have valid wills and/or trusts in effect prior to death. Now that gay couples may legally marry, it is an important time to review and update any prior estate planning in light of the legal marriage of the couple.

 

How the gay marriage decision could affect your estate planning

However, the more interesting question will arise if a person had previously signed a valid will that does NOT provide for the now-legally married spouse. For instance, let us assume that in 2007, Jane wanted to make sure that whatever property she owned upon her death would be given to her nieces and nephews, and not to certain other family members with whom she had a falling out. Jane drafted a will to ensure that these wishes were known and signed the will in 2007. Later, Jane met Susan and they legally married in 2015. Let us continue our scenario by assuming that Jane completely forgets about the 2007 will and assumes that Susan will simply receive her property when she dies because they are now legally married. When Jane dies and the nieces and nephews come forward with the 2007 will claiming the entirety of Jane’s estate, is Susan left out in the cold to receive nothing from her deceased spouse’s estate?

Luckily for Susan, Nevada law has long provided a remedy for surviving spouses who marry after the deceased spouse had already signed a will. Nevada law provides, “If a person marries after making a will and the spouse survives the maker, the will is revoked as to the spouse.”1)NRS 133.110. There are 3 exceptions to this general rule that would still prevent the surviving spouse from the benefit of this law, but those exceptions will not be discussed in this blog post.. But, what exactly does that mean? What would Susan receive from Jane’s estate and what would Jane’s nieces and nephews receive?

As to Susan, the law provides that she would receive from Jane’s estate the same thing she would receive had Jane died without a will.2)NRS 133.110(2)[a] If Susan had a community property interest in any property that was titled in Jane’s name only, Susan would automatically receive the first one-half of all such community property as the surviving spouse.3)Click here for more on community property The remaining one-half of the community property “is subject to the testamentary disposition of the decedent,”4)NRS 123.250[1] which means that the remaining one-half of the community property is distributed according to the terms of the will. The nieces and nephews win the remainder, right?

Wrong: Remember that the will is revoked as to the surviving spouse and the surviving spouse would inherit as if there was no will. This becomes crucial as to any community property. If a spouse dies with community property and no will, which is how the deceased spouse is treated when there is a marriage after a will is signed, all of the remaining community property goes to the surviving spouse. 5)NRS 123.250(1)(b)[1]. Thus, Susan would inherit the entirety of all community property and the nieces and nephews get none of the community property.

 

What happens to the nieces and nephews?

So, you ask, are the nieces and nephews completely left out? Not necessarily. If Jane had any separate property (generally any property that was acquired prior to the marriage and that was not transmuted into community property during the marriage), the nieces and nephews are going to receive a portion of the separate property. First, Susan will receive the share of the separate property that she would have received if Jane had died without a will. If Jane died with more than one child, Susan would receive one-third of the separate property6)NRS 134.040[2] and the remaining two-thirds of the separate property would pass to the nieces and nephews according to the terms of the will. If Jane died with only one child or with no children at all, Susan would receive one-half of the separate property7)NRS 134.040(1) and 134.050[1]-[2] and the remaining one-half of the separate property would pass to the nieces and nephews according to the terms of the will. Thus, the nieces and nephews will get either two-thirds or one-half, dependent on how many children Jane did or did not have.8) A very LARGE caveat: children born after their parents sign a will are also included in the distribution in a similar fashion to the surviving spouse. Watch for a subsequent blog post about this issue. In any event, the short answer is that the nieces and nephews may actually receive nothing from Jane’s estate even though the 2007 will is entirely valid.

Phew! If you have made it this far in this blog post and not got lost, or even if you got this far and did get lost in those details, give yourself a gold star for perseverance. Then, realize that the main point of the entire blog post is that if you have gotten married and if you did a will prior to marriage, make sure that you come and talk to me about getting it all updated. Now that Jane and Susan have the benefit of legal marriage, it would be a shame to leave their estates in a mess after death due to their failure to revisit their estate planning after the marriage.

#Lovewins

Footnotes

Footnotes
1 NRS 133.110. There are 3 exceptions to this general rule that would still prevent the surviving spouse from the benefit of this law, but those exceptions will not be discussed in this blog post.
2 NRS 133.110(2)[a]
3 Click here for more on community property
4 NRS 123.250[1]
5 NRS 123.250(1)(b)[1]
6 NRS 134.040[2]
7 NRS 134.040(1) and 134.050[1]-[2]
8 A very LARGE caveat: children born after their parents sign a will are also included in the distribution in a similar fashion to the surviving spouse. Watch for a subsequent blog post about this issue. In any event, the short answer is that the nieces and nephews may actually receive nothing from Jane’s estate even though the 2007 will is entirely valid.
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