In the realm of probate law, the omitted spouse doctrine serves as an important safeguard for individuals who marry after creating a will. In Nevada, this doctrine ensures that spouses who are unintentionally left out of a will, such as a new spouse, are still entitled to a share of their deceased spouse’s estate. Understanding this doctrine is crucial for both estate planners and individuals navigating the probate process.

What is the Omitted Spouse Doctrine?

The omitted spouse doctrine addresses the situation where a person creates a will before marrying and then neglects to update that will to include his or her new spouse. In many jurisdictions, including Nevada, the law recognizes that such omissions are often unintentional. Therefore, the omitted spouse is typically entitled to a share of the estate as if the decedent had died intestate (without a will).

Legal Framework in Nevada

Nevada law provides guidance on the treatment of omitted spouses. According to NRS 133.110, if a testator executes a will and later marries, the omitted spouse is entitled to a portion of the estate, unless the will expressly disinherits the spouse or there is clear evidence of the testator’s intent to exclude the spouse.

The general rule is that the omitted spouse receives a share equivalent to what they would have received under Nevada’s intestacy laws. This means that, if the decedent died without a will, the spouse would typically inherit a significant portion of the estate, depending on the presence of other heirs such as children or parents and whether the deceased spouse’s estate primarily consists of separate or community property.

Key Considerations

There are several key considerations the probate court will examine when determining whether an omitted spouse will take from his/her spouse’s estate which include:

1. Intent of the Testator: The key factor in determining whether the omitted spouse is entitled to a share of the estate is the intent of the testator. If the will contains language indicating that the testator intended to exclude the spouse, this may supersede the omitted spouse doctrine.
2. Premarital Agreements: The omitted spouse doctrine may not apply where provisions have been made for the spouse by a marriage contract such as a premarital agreement. Where a marriage contract provides for the transfer of property and/or the support of a spouse upon death, this may negate the application of the omitted spouse doctrine.
3. Exclusions and Disinheritance: If a will explicitly states that a future spouse is to be disinherited, the omitted spouse doctrine may not apply. Clear and unequivocal language in the will that reflects the testator’s intent to exclude the spouse is essential in such cases.
4. Community Property Considerations: Nevada is a community property state, meaning that any property acquired during the marriage is considered jointly owned. This aspect can further complicate matters of inheritance, particularly where the deceased spouse has children from a previous relationship. In those cases, the omitted spouse is typically entitled to the community property, but would only receive a portion of the deceased spouse’s separate property, the other portion of which would pass to his or her children.

Conclusion

In Nevada, as in all states, it is critical for individuals to revisit their estate plans after significant life events, such as marriage. A new marriage can change the dynamics of an estate significantly, and failing to update a will can lead to unintended consequences. The omitted spouse doctrine, however, serves to protect the rights of individuals who marry after the creation of a will. It acknowledges the potential for oversight and aims to uphold the intent of fair distribution of assets among heirs. As with all legal matters, individuals are advised to seek professional legal guidance when navigating estate planning and probate issues, ensuring that their wishes are clearly articulated and legally upheld. By doing so, they can avoid the complexities that arise from unintended omissions and ensure that their loved ones are adequately provided for in the event of their passing.