Existing Will vs.

Existing Will vs. New Marriage
One year ago our father opted to marry an assisted living care employee that took care of his dying wife, now deceased. Among other stories, her green card was expiring and he wanted someone to take care of him tell he died and she agreed, saying she loved him, etc., so she would not be deported they got married. Are the wills, power of attorney and living will that the children have now, that were written prior to this situation, any longer legal or in effect, with Washington being a community property state, if he were to pass away?

4 thoughts on “Existing Will vs.

  1. Re: Existing Will vs. New Marriage
    Of course, Bruce is correct, that in my haste to get on point, I prematurely killed off the writer’s father inside of my legal analysis. At least the writer now has a pretty good idea of what doom can befall this father and his family unless swift and appropriate actions are taken soon.

    Jeffrey A. Lustick, Esq
    The Lustick Law Firm
    1313 East Maple Street, Suite 221
    Bellingham, WA 98225-5708

  2. Re: Existing Will vs. New Marriage
    The powers of attorney and the living will that your father had are now no longer effective since he has died. However, if his pre-marriage will exists, that document and any appointment of representatives it makes, should be valid provided your father did not rescind it or rewrite it prior to his death. He could have done this without your knowledge, and this is easy to do even on one’s death bed.

    If the pre-marriage will still exists, you need to locate it as soon as you can. It needs to be filed with the Superior Court Clerk in the county where he resided prior to his death. Usually under Washington State inheritance law (which is generally referred to as “probate” law), when there is no will, the widowed spouse receives 100% of the deceased spouse’s community property and up to ½ of the deceased’s personal property. But this is how things work when the testators dies without a will (that situation usually being referred to as “dieing intestate”).

    If there’s no will or it cannot be found in time, by operation of the state probate laws, the wife stands to get most of the estate. If there is a will, the provisions for property distribution stated in the will usually trump the probate code. But one exception occurs when the widow isn’t mentioned in the will (referred to as “pretermitted spouse”), and then she can challenge the will and still claim an elective share. An “elective share” is given to somebody who is a rightful heir of the estate but was left out of the testator’s will due to some excusable oversight. You see, the law assumes that anyone with a will who has not named their spouse in the will did so on accident unless evidence to the contrary can be found.

    My advice is to hire a good probate attorney and have her or him review and file the will as soon as possible. If the estate is sizable and the widow was really in it for the money, then chances are she’s already got her own attorney and it’s only a matter of time until she files her claim against the estate. If you’re not on good terms with the widow, your family is probably in for a long and expensive litigation battle.

    This is probably not the way you envisioned honoring the legacy of your deceased and beloved father, but it happens more often than you might think. This is why I always stress to my clients the importance of keeping one’s will and powers of attorney up to date. Good luck.

    Jeffrey A. Lustick, Esq
    The Lustick Law Firm
    1313 East Maple Street, Suite 221
    Bellingham, WA 98225-5708

  3. Re: Existing Will vs. New Marriage
    This is not an easy question to answer because I do not have enough information. The living will should be good until your father dies. The power of attorney should be good provided that it names a now living person to be the attorney in fact. The will will not be any good if it names your mother as the sole heir. If it names your mother a first heir, then the children as secondary heirs, there still coul dbe trouble because of the new marriage and the community property laws of this state. The will coul dalso have been changed without any of the children knowing about it. Talk to you rfather and then to an attorney.

    Jahnis Abelite
    16710 Smokey Point Blvd., Suite 200
    Arlington, WA 98223-8435

  4. Re: Existing Will vs. New Marriage
    Mr. Lustick did a nice job of reviewing what COULD happen if the status quo remains in effect. (I’m not sure he noticed that your father hadn’t passed away yet.) Just to add some to his excellent summary, not only could your father’s new bride receive 100% of the community property assets but also up to 75% of the separate property assets. My suggestion is that you get your father in to see an attorney that can draft a new will based on the situation and identifying the new spouse. It would also be best if he did not sign any form of a community property agreement, perhaps sign some form of a separate property agreement and certainly not list the new spouse as the attorney in fact on any power of attorney.

    Bruce Busch
    Bruce R. Busch, Attorney at Law
    6511 39th Ave. NE
    Seattle, WA 98115

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