If you or someone you love married after the will was signed, take a breath. This situation is common, and the law already anticipated it. Most states do not let an old will quietly erase a new spouse. If you are reading this after a death, we are sorry. The path forward is usually clearer than it feels right now, and the first steps cost nothing.
Where You Stand: Married After The Will Was Signed
An old will does not automatically cancel a marriage. In most states, a spouse who married after the will was signed is called an “omitted spouse” or a “pretermitted spouse.” The Cornell Legal Information Institute defines a pretermitted heir as someone left out of a will who the law presumes was forgotten, not disinherited.
Typically, the law gives that spouse the share they would have received if the person had died with no will. There are exceptions. For example, if the will says the omission was intentional, or if a prenuptial agreement waived the right, the share may not apply. Some states also protect gifts left to children from an earlier relationship.
The exact numbers vary a lot by state. Here are five concrete examples:
| State | Statute | What a spouse who married after the will was signed receives |
|---|---|---|
| California | Probate Code § 21610 | All of the decedent’s one-half of community property, plus a share of separate property — but never more than 50% of the separate property |
| Florida | Fla. Stat. § 732.301 | Full intestate share. Separately, a surviving spouse may elect 30% of the elective estate under § 732.2065 |
| Georgia | O.C.G.A. § 53-4-48 | Will is partly revoked; spouse takes the intestate share, paid first from the residue. With children, that share is never less than 1/3 |
| New York | EPTL § 5-1.1-A | No omitted-spouse rule. Instead, the spouse may elect the greater of $50,000 or 1/3 of the net estate |
| Washington | RCW 11.12.095 | Intestate share under RCW 11.04.015: all community property, plus 1/2 of separate property if there are children, or 3/4 if there are none |
As a result, two families in the same situation can end up with very different numbers. Always check your own state’s code before assuming anything.
What to Do First (Step by Step)
Start with paperwork, not arguments. One: locate the original signed will and note the exact date on the signature page. Two: get a certified copy of the marriage certificate. Compare the two dates. If the marriage came later, the omitted-spouse rules may apply.
Three: read the will for language about a future spouse. Some wills say “any person I may later marry” — that phrasing can defeat the claim. Four: look for a prenuptial or postnuptial agreement. Five: call the probate court in the county where the person lived and ask about filing requirements.
If no one has died and the will is simply outdated, the fix is much simpler. Signing a new will that names the current spouse replaces the old one. That single step removes the whole question.
How to Protect Yourself and Keep Records
Good records settle most disputes before they start. Keep a certified marriage certificate, the death certificate, the original will, and any codicils. Add bank statements, deed copies, retirement account beneficiary forms, and life insurance policies. Beneficiary designations pass outside the will, so they matter a great deal here.
Make copies of everything before you hand anything to anyone. Courts often require the original will, and originals can go missing. For example, scan each page and email the file to yourself so it is time-stamped.
Put agreements in writing. If family members agree on how to divide things, do not rely on a kitchen-table handshake. In most cases, a written family settlement agreement signed and filed with the court is what actually binds everyone. Keep a simple log of every call: date, name, and what was said.
When to Get Help (Probate Court or an Attorney)
Start with free help. Most state court systems run a self-help center that explains local forms at no charge. The California Courts Self-Help Center and similar .gov portals in other states walk you through probate step by step. Court clerks cannot give legal advice, but they can tell you which form to file and what it costs.
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Next, try legal aid. Legal Services Corporation lists free civil legal aid offices by ZIP code. Many help low-income surviving spouses with probate matters. Some county bar associations also run free clinics.
Hire a probate attorney when the numbers or the tension get large. Good reasons include an estate with a business or real estate, adult stepchildren contesting the claim, a prenuptial agreement in play, or a deadline within 60 days. Because someone married after the will was signed often faces a contested claim, one consultation can save months. Ask about flat fees. Many estates can be handled with limited-scope help rather than full representation.
Frequently Asked Questions
Does getting married automatically cancel an old will?
In most states, no. Georgia partly revokes the will and gives the new spouse an intestate share, while states like California and Washington leave the will standing but carve out a spousal share. Check your state’s probate code, because a few states treat this differently.
What if the will names an ex-spouse instead?
Most states automatically revoke gifts to a former spouse upon divorce. However, that rule usually does not apply to life insurance or retirement accounts governed by federal law. Update those beneficiary forms directly with the company.
Can a claim still be made if the estate is already being distributed?
Sometimes, but time is short. Once the statutory election period runs, the right may be lost for good. If you married after the will was signed and probate is open, contact the probate court or a licensed attorney this week, not next month.
Where to get real help, free or low-cost
You do not have to figure this out alone, and you do not need to buy anything to get started. Your state’s probate court usually has a self-help desk, and free legal aid can walk you through the next steps.
- Your state probate (or surrogate’s) court: search “[your state] probate court self-help” for free forms and instructions.
- Free legal aid: lawhelp.org — find free and low-cost legal help in your state.
- Eldercare and benefits help: eldercare.acl.gov — connects families with local support.
Sources & How to Verify
The information on this page is drawn from official government and court sources. Estate, probate, and tax rules change, so always confirm the exact figure with your state’s court, statute, or a licensed attorney.
- IRS — Estate Tax: irs.gov — federal estate-tax rules and exemption
- Find free legal help: lawhelp.org — free and low-cost legal aid in your state
- Cornell Legal Information Institute: law.cornell.edu/wex — plain-English legal definitions
- Your state probate code & court self-help portal: search “[your state] probate code” and “[your state] probate court self-help” for the exact law and forms
Content last reviewed September 2026. If you notice outdated information, please contact us.
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Informational only — not legal or tax advice. Wills Probate Guide is an independent educational resource, not a law firm, tax advisor, or financial planner, and this page does not provide legal or tax advice. Estate, probate, and tax rules vary by state and change over time, so always verify the exact rule with your state’s probate code, your local probate court’s self-help portal, or a licensed attorney. For urgent matters like an active probate or a tax deadline, contact a licensed attorney in your state right away.