How will changes and revocation work

Key takeaway

In Minnesota, for example, a later will or an intentional revocatory act can revoke a will, and divorce can revoke provisions benefiting a former spouse. Other states differ.

When reviewing a change, gather the signed will, later documents and any relevant family agreements. Separate the question of what you want now from the question of what your existing documents say.

Later wills and physical revocation

In Minnesota, for example, executing a later will revokes an earlier will or part expressly or through inconsistent provisions. A later will disposing of the entire estate is presumed to replace the earlier will, unless clear and convincing evidence rebuts that presumption.

A later will that does not completely dispose of the estate is presumed to supplement the earlier will, unless clear and convincing evidence rebuts that presumption. If unrebutted, both operate to the extent consistent, and only inconsistent earlier provisions are revoked.

Burning, tearing, canceling, obliterating or destroying a will or part can revoke it when done with the testator's intent and purpose to revoke. The testator must act personally, or another person must act at their direction and in their conscious presence. Other states differ.

Keep the earlier document available for your attorney's review when discussing a replacement. Point out every later document and any physical changes to the original.

Oregon's limit on crossing out individual provisions

In Oregon, physical acts cannot partially revoke a will provision. Burning, tearing, canceling, obliterating or destroying a will can revoke the entire will when accompanied by the testator's intent and purpose to revoke.

The testator must perform the act, or another person must act at the testator's direction and in the testator's presence. Injury or destruction by that other person must be proved by at least two witnesses.

Acts affecting only some provisions may establish revocation of the entire will through clear and convincing evidence of that intent. Other states differ.

Restoring an earlier will

In Minnesota, for example, physically revoking a replacement will does not automatically restore an earlier will that it wholly revoked. Restoration requires circumstances of revocation or contemporary or subsequent declarations showing the testator intended the earlier will to take effect.

If the physically revoked replacement only partly revoked the earlier will, the earlier revoked part revives unless those circumstances or declarations show contrary intent.

If another later will revokes the replacement, the earlier will or revoked part revives only to the extent that later will's terms show an intent to restore it. Other states differ.

Marriage after signing

In Oregon, marriage after execution revokes a will if a spouse survives the testator, unless one of these exceptions applies:

The will shows contrary intent or was drafted in circumstances establishing that it contemplated the marriage.
A written contract made before marriage provides for the spouse or excludes the spouse's estate rights.
The testator executed the will during a registered domestic partnership under Oregon's specified provisions or a similar law elsewhere, then married that partner.

Other states differ. Bring any premarital agreement and the will to a review after marriage.

Divorce, annulment and beneficiary records

In Minnesota, for example, divorce or annulment revokes revocable gifts, beneficiary designations, powers and fiduciary nominations favoring a former spouse or that spouse's relatives in a governing instrument.

An instrument, court order, property agreement or retirement plan document can provide otherwise. Remarriage to the same former spouse revives provisions revoked solely by this rule. Other states differ.

Retirement records deserve a separate review. In Kennedy, an ERISA pension plan administrator properly disregarded a former spouse's waiver in a divorce decree that was not a qualified domestic relations order because it conflicted with the participant's beneficiary designation.

The Court did not hold the waiver invalid under the antialienation provision. This holding concerns the plan and circumstances in that case.

A separate list for personal belongings

In Minnesota, for example, a will may refer to a separate list disposing of tangible personal property not otherwise specifically disposed of by the will. The list cannot pass money, coin collections, business property, investments or real estate.

The will must refer to the list. The list must be handwritten or signed by the testator and describe the items and recipients with reasonable certainty.

It may be written before or after the will and changed later. The most recent writing controls each item. Other states differ.

Codicil: In Washington, a codicil is a will modifying or partially revoking an earlier will. It need not refer to or be attached to the earlier will, and other states differ.

Elective share: In Minnesota, for example, a surviving spouse of a Minnesota domiciliary may elect a percentage of the augmented estate determined by marriage length, subject to statutory limits and conditions. Other states differ.

Starting the planning conversation

In this excerpt, a speaker reflects on putting off a conversation about estate planning.

"So I would just encourage all the listeners, if they haven't had a conversation with their estate planning attorney, or they've put off estate planning like most Americans, just 'cause they don't want to think about it,"
From an Investor Advantage talk hosted by Richard C. Wilson

Four-column chart showing how property passes: under a will, by title, by beneficiary designation, and through a trust. — Property passes in four different ways, and only one of them runs through the will. See also the full chart page.

Common questions

Does every change in circumstances revoke a will?

No. In Minnesota, for example, changed circumstances do not themselves revoke a will or part of it, subject to the statutory exceptions identified in the changed circumstances provision. Other states differ.

Does a Georgia codicil offer a shortcut around signing formalities?

No. Georgia's official DHS guidance describes a codicil as an addition or supplement that adds to or removes something from a will and requires the same execution formalities as a will. Other states differ.

Do joint or mutual wills create a presumption of a contract against revocation?

No. In South Carolina, executing a joint will or mutual wills does not create a presumption of a contract not to revoke them. Other states differ.

Sources