Pretermitted spouse

The Problem of the Pretermitted Spouse

One of the common and vexing problems in administering a decedent’s estate is how to deal with a pretermitted spouse. To most non-lawyers, that sounds vaguely disturbing. What is a “pretermitted spouse,” and why do we care about their problems?

What – or who – is a “pretermitted spouse”?

“Pretermitted” is just a near-archaic term meaning “omitted.” The older version is rarely used, except by lawyers (and law students). Even in the law, the trend is away from the old-fashioned word.

In most states (and certainly in Arizona) you can purposely omit your spouse from your will. Arizona does give slight protection to the intentionally omitted spouse, but the key word is “slight.” A person can intend to omit their spouse when signing the will. But in most circumstances the spouse will receive a total of at least $37,000 from the estate.

But the pretermitted spouse is actually a subtly different kind of creature. The omission of a pretermitted spouse is usually by accident, rather than on purpose. There is a problem, though, when a will’s signer (the testator) later marries. If the testator makes no change to reflect the marriage, he or she now has a pretermitted spouse.

What does the pretermitted spouse get from the estate?

In most states (including Arizona), the person who marries a testator after they sign their will is still entitled to a share of the testator’s estate. That share often is what the spouse would receive if there was no will at all. And, again, in most cases that may mean one-half of the testator’s estate.

Arizona is subtly different on this score, however. In Arizona, the pretermitted spouse is entitled to one-half of the testator’s estate, as in many other states. But the spouse’s share can not come from any portion of the estate left by will to the testator’s children or descendants.

Imagine, for instance, that Anne has a will leaving her estate to her three children in equal shares. A year after signing her will, she marries Pat. Pat is now a pretermitted spouse, but still receives nothing from Anne’s will (because everything goes to Anne’s children).

If, instead, Anne’s will left everything in equal shares to her two children and her best friend, Pat would receive a share of her estate. But Pat’s share would be limited to the one-third that would have gone to her friend (who would receive nothing).

Now imagine that Anne’s will left her entire estate in three equal shares to her son and two friends. When Anne died without updating her will, Pat would receive one-half of Anne’s estate. Her son would still receive one-third, and Anne’s two friends would split the remaining one-sixth.

That’s terrible! What should Anne do?

Anne has several choices to avoid the harsh results:

  1. She can sign a new will. That, of course, is the preferred approach. Anne should be setting out what she actually wants, rather than relying on rules of construction.
  2. Anne could provide for Pat outside the will — and make it clear that she is doing so. If she put Pat’s name on her home as a joint tenant, and sent a letter explaining she was doing that to make her estate distribution more equitable, for instance, that might be sufficient.
  3. Anne could sign something indicating that she has thought about Pat and doesn’t want to make any changes. Of course, she could do the same thing by simply signing a newly-printed version of her old will (dated after her marriage to Pat).

Do the same rules apply to Anne’s revocable living trust?

Ah, what a fun question! We’re so glad we thought to ask ourselves!

Arizona’s statute on pretermitted spouses expressly applies to wills — but it is silent about trusts, beneficiary designations or other non-probate transfers.

There is a trust code provision (in Arizona) that says the same rules of construction for wills should apply to trusts, at least in most cases. Maybe that means the pretermitted spouse issue will be resolved in the same way as for wills.

But don’t jump to that conclusion. One reported court case from 2018 (in New Hampshire, as it happens) deals with precisely that situation. And that case decided the pretermitted spouse provision in New Hampshire law didn’t apply to revocable living trusts simply because of the same kind of provision found in Arizona’s trust code.

Another Arizona statute confuses the question even further. It uses language similar to our trust code provision, but applies to all “governing instruments.” Seriously? Even life insurance beneficiary designations, and joint tenancy titles on accounts and deeds? Perhaps.

So what does it all mean?

That’s an easy question to answer. People need to update their wills — and their trusts — when they marry. Full stop. You don’t want your wishes to be modified by rules of construction that might or might not apply.

And don’t even get us started on pretermitted children. Well, truth be known, we’ll probably get ourselves started on pretermitted children before you know it. Because this stuff really is interesting. At least to us.

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