Revocation by Subsequent Writing Revocation by Operation of Law
There are certain life events that commonly happen in a person’s life that may impact his or her last will and testament. People oftentimes have misconceptions about how the occurrence of these life events, whether it be marriage, birth of a child, or divorce, effects a will that was in place prior to the life event happening. The North Carolina General Statutes set forth how a will should be treated in various instances, some of which are discussed below.
Subsequent Marriage
If a person executes a valid will in North Carolina and then later gets married, the will is not revoked by the subsequent marriage of the will maker. If the will maker later dies with the will still being a valid will, his or her surviving spouse will be entitled to petition the court for an elective share of the estate even though he or she is not mentioned in the will that was executed prior to the marriage.
Marriage Plus Birth or Adoption of a Child
When a person executes a valid will in North Carolina and then later has a child, whether by birth or adoption, the will is not revoked by the subsequent birth or adoption of the child. If the will maker later dies, the child born or adopted after the execution of the will still has the right to share in the will maker’s estate to the same extent he or she would have shared if the will maker had died without a will unless:
- The will maker made some provision in the will for the child, whether adequate or not;
- It is apparent from the will itself that the will maker intentionally did not make specific provision therein for the child;
- The will maker had children living when the will was executed, and none of the will maker's children actually take under the will;
- The surviving spouse receives all of the estate under the will; or
- The will maker made provision for the child that takes effect upon the death of the will maker, whether adequate or not.
Divorce or Annulment
A divorce or annulment that occurs after the execution of a will in North Carolina does not revoke the will. However, the divorce or annulment does revoke all provisions in the will in favor of the spouse from whom the will maker was divorced, unless otherwise specifically provided in the will.
Revival of Revoked Wills
The general rule in North Carolina is that once a will is revoked it is considered to be legally dead and cannot be revived. However, the North Carolina G.S. layout four exceptions for revival of a revoked will.
- Re-executing the revoked will with the required testamentary formalities.
- Executing a new will in which the revoked will is incorporated by reference.
- Under the doctrine of republication by codicil, execution of a codicil that makes express reference to the revoked will.
- Where provisions of a will are revoked because of divorce or annulment, those provisions are revived by the will maker’s remarriage to the former spouse.
