Are Wills made during marriage binding on the surviving spouse?

March 21, 2013, by

widower at funeral.jpgWhen Earle Sr. died in July of 2009, Earle Jr. sought to probate the nine-day-old Will that left the residue of his father's estate to him. Earle Sr. had become wealthy by most people's standards, by marrying Barbara in 1985 and then surviving her in 2009. This turn of events was not pleasing to Barbara's son Shane, who would have received half the estate under her 2005 Will had Barbara had survived Earle Sr.

Earle Sr. had actually done a Will just like Barbara's in 2005. It and a Community Property Agreement gave all to the surviving spouse, and then, after both of their lifetimes, half to his family and half to Shane. Then a flurry of events in 2009 threatened Shane's share. Barbara died and Earle Sr. got all her estate. Then he changed his Will to favor Earle Jr. and cut Shane out. This is a risk in any case where each spouse has his or her own children, and the estate plan puts all in the hands of whichever spouse survives.


Shane objected, arguing among other things that the 2005 Wills represented a binding agreement by Earle Sr. and Barbara on the eventual allocation of their estate. This would make them mutual Wills, to which the surviving spouse would remain bound. But the Wills didn't specifically say they were mutually binding, so Shane had to convince the court that there was an oral agreement that resulted in the mirror-image Wills. He offered the testimony of others, mainly the lawyer who drew the Wills, to establish an agreement between his mother and Earle Sr.

Earle Jr. countered evidence of an agreement in two ways. First he argued that the Community Property Agreement that gave everything outright to the surviving spouse, superseded the Wills and gave free rein to the surviving spouse. Second he raised what is called the statute of frauds, that requires any contract affecting title to real estate to be in writing.