Pretermitted spouse

What it means

A will written before a marriage says nothing about the person who later became a spouse. Rather than read that silence as a decision, several states treat the new spouse as omitted and give them a share, often the one they would have taken had there been no will at all.

The rules usually name a small number of exits: the will provided for them, the will discloses an intention not to, or an agreement between the couple dealt with it.

Leaving the will untouched is generally not one of the exits, which is what makes this a default rather than a choice.

Why it matters

It is the reason a marriage is a reason to look at a will, and not merely a good habit.

It matters most where an old will leaves everything to children from an earlier relationship, because the new spouse's share comes out of what they were left.

When you are likely to meet it

• After a marriage, where either person has a will that predates it.
• After a death, where the will was signed before the marriage.

How this varies by state

Whether a state protects a spouse married after the will, what share they take, and which exits defeat the claim are state law and differ.

Related terms

• Pretermitted heirA child left out of a will who was born or adopted after it was signed, and who may inherit anyway.
• Elective shareA surviving spouse's right to claim a minimum portion of the estate, even if the will leaves them less or nothing.
• WillA written document saying who should receive what, and who should be in charge of seeing that it happens.
• Prenuptial agreementA written agreement signed before a marriage that changes some of the financial and property rules the marriage would otherwise bring with it.
• Postnuptial agreementThe same kind of agreement, made by a couple who are already married.
• IntestateDying without a valid will, so the estate passes by the state's own rules rather than by anybody's wishes.

Sahvelo guidance that uses this

• Your prenup, your will, and the documents that actually decide