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Spouses & Children

There are a number of special statutes dealing with Spouses and Children in Nevada's probate statutes. Here are just a few of them:

Preference for Surviving Spouses and Minor Children:

If the estate does not exceed $100,000 in value after deducting all mortgages, the surviving spouse and/or minor children have preference over others including creditors and people named in a will. See N.R.S. 146.070. Minor children and spouses are entitled to remain in the homestead and entitled to a reasonable allowance in the case of larger estates. See N.R.S. 146.10.

Child not mentioned in Will:

If a child is born after a will is made the child shall inherit what would be his share if the person had died without a will unless it is apparent from the will that any afterborn children will not inherit or unless is appears that the will write made subsequent provisions for the child outside of the will. See N.R.S. 133.160 and N.R.S. 133.190.

But if a will is written and no provision is made for a child who is already born the court presumes that the omission was intention. See N.R.S. 133.170. However, a presumption can challenged with contrary evidence in court. That is why if the intention is to give nothing upon death to Child C, the will often states, "I have intentionally omitted to provide for Child C," or "I have intentionally omitted to provide for any of my children."

Suppose a parent writes in a will, "I have intentionally omitted to provide for Child C." Then later, the parent reconciles with Child C and scratches out that clause or whites out the clause. Other heirs will probably successfully argue that the white out or scratch out fails to meet the requirements of a holographic will or will amendment, see Probate Words and Terms In addition, the other heirs will argue that under N.R.S. 133.170 since Child C wasn't included in the original will,Child C does not inherit. As you can see from this example, if someone wants to change a will it makes sense to have an entirely new will done, or a proper amendment to the will done because an ineffective change could fail to carry out the wishes of the will write and could create additional strife and bad feelings between the heirs.

Effect of Marriage and Divorce on Will:

If a will is written before the will writer marries and certain conditions apply, the spouse is entitled to the share the spouse would inherit in the absence of the will. N.R.S. 133.110, but N.R.S. 146.070 discussed above will control if the estate minus mortgages is not more than $100,000.

If a will is written before a divorce or annulment of the marriage any provision for the spouse is revoked unless contrary to the terms approved by a court of the divorce or annulment order or separation agreement. N.R.S. 133.115.

Note that these statutes do not afford any protection to people who are engaged to be married. Nor do these statutes cut out the inheritance of someone who has filed for divorce.