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Lessons in the Law February Report

February 9, 2021

You Can’t Exclude Your Spouse

Maybe you knew you would, or you weren’t sure it was ever going to happen again, but it is—you’re getting remarried. But unlike the first-time union between husband and wife, a second marriage brings with it a few added complications. Do you both have children from previous relationships? Did you each own a home? Did you buy a new home together? Did you decide to put your money together?

Everything should be fine, right? After all, you each had a will drawn up prior to deciding to tie the knot indicating who should get what from your respective estates.

Not so fast. If you think the will you had before is going to cover you once you get married, think again.

In Ohio, a spouse can elect against a pre-existing will and take a percentage of the other party’s estate. It’s called having statutory rights. You can’t exclude a spouse from your will. Pre-existing wills won’t work. If you really want to keep your assets separated so they can be left to your children, new documents need to be drawn up and there’s some planning involved. It’s the only way to make sure your wishes are carried out.

Prenuptial agreements are one way to take care of business, but they need to be done before you get married—afterwards, it could be too late. You will also need updated living wills and powers of attorney that provide the right to your new spouse to make decisions for you, if you so choose. You should also review the deed to your home to make sure the wording on the title to any new property is correct.

Atty. John J. Urban

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