Does a deceased spouse’s will leave you at a disadvantage? Explore your legal options with guidance from Keystone Law.
Imagine discovering after your spouse’s death that their will leaves everything to their children from a prior marriage, ignoring your rightful share of the community property. Can a spouse change a will after death to reflect their ownership interest?
Or perhaps you uncover suspicious last-minute changes to the will, which you believe were the result of undue influence by one of your spouse’s children. Can a will be changed after a spouse dies to undo such changes and restore the original terms of the will?
Or maybe you and your spouse created a mutual will years ago, but it fails to account for a child you had together shortly before your spouse’s untimely passing. Can a surviving spouse change a mutual will to add an unintentionally omitted child?
While each of these scenarios may seem like valid grounds for amending a will, the unfortunate truth is that a will cannot be changed after the testator’s death under any circumstance. Once a will becomes irrevocable, which happens automatically upon the testator’s passing, no one — not even the surviving spouse — can alter its terms.
If a spouse attempts to change a will anyway, the beneficiaries impacted by the change may challenge it in court, which can lead to costly litigation and serious legal consequences for the spouse.
That said, spouses are not without recourse. While you cannot directly change your partner’s will after death, there are legal strategies that may help you achieve a similar outcome.
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What Happens to a Will When One Spouse Dies?
After a spouse’s death, their will automatically becomes irrevocable. Once a will is irrevocable, it cannot be revoked or altered by anyone — not even the surviving spouse.
Why Might a Surviving Spouse Want to Change a Deceased Spouse’s Will?
A surviving spouse’s desire to alter their late partner’s will doesn’t always stem from misconduct or self-interest. Often, it reflects genuine concerns about changed family circumstances, fairness or the will’s validity.
Family Circumstances Have Changed
Sometimes, a will doesn’t reflect the realities of a family’s current situation because it was created years earlier.
Suppose a decedent drafted their will long before their death. However, in the final months of their life, their spouse loses their job and becomes financially dependent on them.
The surviving spouse may feel the will should be adjusted to provide them with more financial support. Even if this is what the decedent would have wanted, the surviving spouse cannot make that change after death.
The Will Appears Unfair
A will may seem unfair if it overlooks the surviving spouse’s community property rights, which automatically entitle them to half of the assets acquired during marriage (with limited exceptions).
Suppose a decedent leaves more than their 50% share of community property to someone other than their spouse. While the surviving spouse is right to see this as inequitable, they cannot alter the will directly. Instead, they would need to explore legal avenues to enforce their community property rights.
The Will Doesn’t Reflect the Decedent's True Wishes
Concerns may arise if a will fails to reflect the decedent’s known intentions — a possible sign that the document is invalid.
Suppose a testator amended their will after suffering a stroke that left them with diminished mental capacity. The updated will now contradicts what the surviving spouse and family understood to be the testator’s longstanding wishes.
In such cases, the will’s validity may indeed be challenged in court. However, the surviving spouse cannot personally change the will after death.
When Can a Will Be Changed After a Spouse Dies?
A will cannot be legally changed after a testator’s death — and the fact that the person attempting the change is the testator’s spouse does not alter this rule.
Attempting to change a will after the testator’s death can lead to serious legal consequences. Any alterations made posthumously could be challenged and ultimately invalidated, potentially leading to costly litigation.
Can a Surviving Spouse Change a Joint Will?
A joint will — a single document with two testators — cannot be changed by the surviving spouse after their partner passes away. These wills are designed to be binding after the death of the first testator and are extremely inflexible — which is why estate planners rarely recommend them today.
That said, spouses can generally modify a joint will during their lifetimes with mutual consent provided both retain mental capacity.
Despite their rigidity, joint wills are sometimes used to ensure that assets ultimately pass to the same beneficiaries (for example, children from the marriage), regardless of which spouse dies first.
Can a Surviving Spouse Change a Mutual Will?
A mutual will — two separate but identical documents, one for each spouse — also cannot be changed by the surviving spouse after the death of their partner. Mutual wills are essentially a contract created with two separate wills, where each party agrees not to alter their will without the other’s consent. Like all wills, a mutual will becomes irrevocable upon the death of a testator, preventing the surviving spouse from unilaterally altering its terms.
While the surviving spouse may falsely believe they can change their own portion of the mutual will, this is not the case. The agreement is binding, and changes require the consent of both spouses while both are alive and retain mental capacity.
Can a Surviving Spouse Change a Mirror Will?
A mirror will — two separate but nearly identical individual wills — differs from a joint or mutual will in that the surviving spouse can make changes after their partner dies, provided they have the mental capacity to do so.
Mirror wills mimic each other in terms of beneficiaries and asset distribution. A common setup leaves everything to the surviving spouse and then to the same beneficiaries after the surviving spouse’s death.
How Can a Spouse Override a Will After Death? — Alternatives to Changing a Will
A surviving spouse cannot technically “override” their deceased spouse’s will, but there are legal strategies they can pursue to achieve a similar outcome. The best approach depends on the spouse’s reasons for wanting to alter the will’s effect.
Will Contests
If a deceased spouse’s will appears invalid, the surviving spouse generally has standing to contest the will in court.
That said, there are only a handful of grounds for contesting a will, including:
- Undue influence — Someone pressured or manipulated the decedent to create, alter or revoke the will.
- Fraud — The decedent was deceived into created, altering or revoking their will.
- Lack of capacity — The will was created, altered or revoked after the decedent lost mental capacity.
- Forgery — The decedent’s signature or the will itself was falsified.
- Lack of due execution — The decedent failed to follow proper legal procedures when signing the will.
- Mistake — The decedent did not understand they were signing a will.
- Revocation — A prior valid will was revoked.
If the will contest is successful, the will — or its specific contested provisions — may be invalidated. Assets could then pass according to a prior valid will or intestate succession laws, which typically guarantee the surviving spouse all community property plus a portion of the decedent’s separate property.
The statute of limitations for contesting a will is strict. In California, a spouse must act within 120 days of receiving notice of estate administration or 60 days of receiving a copy of the will, whichever is later. Acting promptly is essential.
Community Property Rights
If a surviving spouse’s community property rights are not honored — for example, if the decedent left more than their 50% share of community property to someone else in their will — the spouse can file a claim to recover their rightful portion.
In California and other community property states, most assets acquired during marriage are jointly owned by both spouses. Prenuptial or postnuptial agreements may modify, but generally cannot eliminate, these rights.
A Spousal Property Petition is often the most effective way for surviving spouses to assert these rights without pursuing a full probate or will contest.
Omitted Spouse Claims
A surviving spouse may wish to file an omitted spouse claim to secure their rightful share of an estate if they were unintentionally excluded from their partner’s will as a result of the document having been executed before marriage.
If an omitted spouse claim is granted, the surviving spouse is entitled to the share of the estate they would have received if their partner had died intestate (without a will), which can significantly alter how the deceased spouse’s will is carried out.
Updating Their Own Estate Plan
While a surviving spouse cannot change their deceased partner’s will, they can alter their own estate plan to reflect the changes they would have wanted in their spouse’s estate.
This may involve updating their will, trust and other planning documents, provided they have the mental capacity to do so. Although this does not directly alter the deceased spouse’s estate, it can help protect the surviving spouse’s assets and influence how their estate is distributed.
Regularly revisiting and updating your estate plan ensures it reflects your current wishes and circumstances, protecting both you and your loved ones from future complications.
FAQs: Rights of Spouses to Change Wills
Still confused about when a surviving spouse can legally change a will after death? Review the frequently asked questions below for additional clarity.
If you still are struggling to find the answers you need, reach out to our firm directly for personalized guidance. Our legal team is standing by to assist.
What if a surviving spouse changes their partner’s will after they die?
Any changes a surviving spouse makes to their partner’s will after death are automatically invalid, because a will can only be changed by a living testator who has mental capacity.
Whether you are a beneficiary, heir or executor, consulting a probate attorney is critical if you believe a decedent’s will has been wrongfully altered by a surviving spouse. In most cases, the will can be contested to revert it to its prior version.
If a spouse attempts to change the will in bad faith, they could face serious consequences, including being ordered to pay the opposing party’s legal fees and potentially being disinherited from the portion of the estate affected by their unlawful changes.
Can I change my will without telling my spouse?
Yes, you generally can change your will without telling a spouse. But to change a will, you must be mentally competent.
Can you change your will if your spouse has dementia?
In general, your spouse’s dementia doesn’t affect your ability to change your own will. So long as you retain mental capacity, you can update your will as often as you wish.
Can you change your will without your spouse knowing?
Yes, you can make changes to your will without your spouse knowing. Keep in mind, however, that if you pass first, your spouse may access your will once it’s lodged with the court, so the changes you made may not remain hidden forever.
Can a new spouse alter a will after remarriage?
A new spouse cannot alter their deceased spouse’s existing will, even if they are named as a beneficiary. Only the original testator can legally change their own will. A new spouse can, however, update their own estate plan after remarriage to reflect their current wishes.
Still have questions about changing a will after the death of a spouse?
If you’re uncertain about your rights as a surviving spouse, Keystone Law is here to help. Our dedicated probate attorneys will carefully evaluate your situation, explain your legal options, and guide you toward the most effective strategy for achieving your goals.
Contact us today to safeguard your interests and ensure your spouse’s estate is administered properly and with care.
