If a testator executes a Will before getting married and never updates the Will to include the spouse before he or she passes away, the surviving spouse is known as a pretermitted spouse. In such case, state statutes provide that the pretermitted spouse is entitled to inherit an amount equal to what the spouse would have inherited if the testator died intestate.
However, if the pretermitted spouse is provided for by other means, such as a prenuptial or postnuptial agreement, then the provisions of the agreement will dictate the spouse’s inheritance. If the decedent expresses a wish in his or her Will to omit the spouse, the surviving spouse must seek his or her right to the elective share (you can read more about the elective share here.)
It is always important to update your estate plan documents when you have significant life changes such as the birth of a child, divorce, or marriage. But if you do pass away without updating your documents, your pretermitted spouse (or heir) should consult with an attorney to ensure they receive their proper share of the estate.
