What is a Nevada pretermitted spouse?

In Nevada probate, a pretermitted spouse is a surviving spouse (Widow/Widower) whose spouse (Decedent/Testator) died with a valid will executed prior to marriage. Nevada probate law goes to great lengths to protect the rights of a surviving spouse. A pretermitted spouse is no exception. Provisions of Nevada’s probate code seek to protect a surviving spouse from the harsh result of disinheritance based on a pre-marriage will.

Imagine this scenario: Bob executes a last will and testament that is valid under Nevada law in 1974. At the time Bob executes his will, he is not married.  In 1980, Bob marries Gertrude. Bob and Gertrude enjoy a long, meaningful marriage. However, unfortunately, Bob never updates his will or estate planning.  When Bob died in 2022, his 1974 will remained in effect. The 1974 will names his two children, Jack and Jill, as the sole beneficiaries of Bob’s estate. Recall the 1974 will does not leave anything to Gertrude as it was executed prior to her marriage to Bob. Jack and Jill petition the Clark County Probate Court to enforce the 1974 will and receive all of Bob’s estate. This would leave nothing to Gertrude.

Is Gertrude out of luck?

The rights of a pretermitted spouse in Nevada probate

Nevada’s probate code is designed to protect pretermitted spouses, like Gertrude, who are unintentionally excluded from a pre-marriage will. NRS 133.110 provides that, “[i]f a person marries after making a will and the spouse survives the maker, the will is revoked as to the spouse.” In short, this means that if a person executes a will, and then gets married, the surviving spouse can still inherit from the Estate. How much does the surviving spouse get?  NRS 133.110 revokes the will as to the surviving spouse, which means that the laws of intestacy will apply. “The sole purpose of [NRS 133.110] is to guard against the unintentional disinheritance of the surviving spouse.” Leggett v. Estate of Leggett, 88 Nev. 140, 143, 494 P.2d 554, 557 (1972).

Intestacy statutes determine distribution of an estate where there is no will. Most people die without a will. Most estates are intestate. Intestacy laws follow an intuitive scheme that most people would follow if they had executed a will.  Intestacy favors spouses, then children, then parents, then siblings then more distant relatives.

In our hypothetical, if Bob had died without a will, Gertrude would have received one third of Bob’s estate as his surviving spouse.  I note here that it is possible Gertrude will receive even more than 1/3 of the estate. This is because of community property considerations and/or application of Nevada’s set aside statute. However, that is beyond the scope of this post.  An explanation of those issues will complicate this post.

How a Pretermitted Spouse Enforces His/Her Rights

Gertrude cannot simply stand idly by, however, if she wishes to enforce her rights as a pretermitted spouse. It is possible the Court will give everything to Jack and Jill unless Gertrude intervenes. Gertrude needs to file a petition or objection and assert her rights. She will need to provide some kind of evidence that she married Bob after execution of the 1974 will.

If Gertrude does this, and no exceptions apply (discussed below), the Court should distribute one third of the estate to her.  The 1974 will governs distribution of the remaining two-thirds.

Exceptions to a Nevada Pretermitted Spouse Claim

As with most rules in law, there are exceptions to Nevada’s pretermitted spouse statute.  A pretermitted spouse cannot claim an intestate share of the estate where

  1. “…[p]rovision has been made for the spouse by marriage contract.” NRS 133.110(1)(a).
  2. “…[t]he [pretermitted] spouse is provided for in the will, or in such a way mentioned therein as to show an intention not to make such provision, including, without limitation, by a reference in the will to a future spouse by name.” NRS 133.110(1)(b). In other words, if Bob left $100 to Gertrude in his 1974 will, Gertrude has no right to 1/3 of the estate.
  3. [t]he spouse is provided for by a transfer of property outside of the will and it appears that the maker intended the transfer to be in lieu of a testamentary provision.” NRS 133.110(1)(c). In our example, if Bob had created a bank account with a beneficiary designation in favor of Gertrude, Gertrude could not also claim 1/3 of the estate as a pretermitted spouse.

In Leggett v. Estate of Leggett, 88 Nev. 140, 143, 494 P.2d 554, 557 (1972), the Nevada Supreme Court summarized these exceptions. “Pursuant to the provisions of NRS 133.110, the only evidence admissible to rebut the presumption of revocation is evidence showing that (1) provision has been made for the spouse by marriage contract, (2) a provision for the spouse has been made in the will, or (3) the spouse has been mentioned in the will in such a way as to show an intention not to make such provision.”

In Nevada, a pretermitted spouse may have a right to a portion of an estate, even if they are not named as a beneficiary in the will.
In Nevada, a pretermitted spouse may have a right to a portion of an estate, even if they are not named as a beneficiary in the will.

Examples of Pretermitted Spouse Exceptions

The Nevada Supreme Court has considered application of these exceptions.  In Leggett, the pretermitted spouse was denied a share of the Estate.  This is because the testator spouse, in the pre-marriage will, made reference to the eventual spouse.  However, the reference did not explicitly disinherit the pretermitted spouse, nor did it bequeath her anything.  The Leggett court found that this passing reference was sufficient to trigger the exception in NRS 133.110(1)(b).  In Riesterer v. Dietmeier, 98 Nev. 279, 281, 646 P.2d 551, 552 (1982), the Nevada Supreme Court considered the following scenario:

John and Betty Riesterer…married in 1976. In 1979 John purchased a home in Henderson in his name. Later in 1979 John and Betty separated, and in consideration of Betty’s release of all claims against his property, John tendered to Betty approximately $50,000 in cash and real and personal property. Subsequently, in July 1979, John executed the will in controversy, leaving his entire estate, with the exception of two small bequests, to his daughter, Sara Jane, and making no mention of Betty. John and Betty were divorced two weeks later, but remarried in February 1980. John died in April 1980 in Missouri, survived by his wife and daughter. The only property of value in the estate is the home in Henderson.

Betty argued she her right to take a share of the estate as a pretermitted spouse because the will pre-dated the remarriage. Sara Jane, the daughter, argued that the divorce settlement constituted a “marriage contract” within the meaning of NRS 133.110(1)(a). The Nevada Supreme Court agreed with Sara Jane:

Appellant was the recipient of a property settlement upon her divorce from the testator. A property settlement is a “marriage contract” within contemplation of NRS 133.110, and its existence in this case rebuts the presumption of revocation. Appellant’s contention that a marriage contract is one made exclusively in contemplation of marriage is without merit. In re Estate of Nelson, 85 Wash.2d 602, 537 P.2d 765 (1975), presented the Washington Supreme Court with analogous factual circumstances. The Nelson court construed a similar statutory exception to the presumption of revocation — “marriage settlement” — to include a post-nuptial property settlement. We are especially persuaded by that part of the Nelson decision which noted that the purpose of these statutes — prevention of unintentional disinheritance of the surviving spouse — would not be served “when any separate arrangement exists to indicate that the decedent wished to keep the will in force and provide specially for the spouse… . Whether the agreement is ante- or post-nuptial it shows that separate provision was made for the spouse rendering the presumption of intent to revoke inapplicable.” Id. 537 P.2d at 772 (Emphasis in original.)

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