MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Judiciary

By: Senator(s) Tollison, Chamberlin, Dawkins

AN ACT TO AMEND SECTION 91-5-3, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT PROVISIONS OF A WILL AFFECTING A SPOUSE SHALL BECOME VOID UPON DISSOLUTION OF THE MARRIAGE; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 91-5-3, Mississippi Code of 1972, is amended as follows:

91-5-3. (1) A devise so made, or any clause thereof, shall not be revocable but by the testator or testatrix destroying, canceling, or obliterating the same, or causing it to be done in his or her presence, or by subsequent will, codicil, or declaration, in writing, made and executed. Every Last Will and Testament made when the testator or testatrix had no child living, wherein any child he or she might have is not provided for or not mentioned, if at the time of his or her death he or she have a child, or if the testator leave his wife enceinte of a child who shall be born, shall have no effect during the life of any such after-born child and shall be void unless the child die without having been married, or without leaving issue capable of inheriting, and before he or she shall have attained twenty-one (21) years. The estate, both real and personal, so devised shall descend to such child in the same manner as if the testator or testatrix had died intestate, subject, nevertheless, to the bequests made in the Last Will and Testament in case of the death of such child before marriage, or without issue capable of inheriting, and under the age of twenty-one (21) years. When a testator shall leave children born and his wife enceinte, the posthumous child or children, if unprovided for by settlement and neither provided for nor disinherited, but only pretermitted, by the Last Will and Testament, shall succeed to the same portion of the father's estate as such child or children would have been entitled to if the father had died intestate, towards raising which portion the devisees and legatees shall contribute proportionably out of the parts devised and bequeathed to them by the same will and testament.

(2) Any provisions of a will executed by a married person, which provisions affect the spouse of that person including a bequest or devise of property, the granting of a power or nomination of the former spouse as a fiduciary, shall become void upon the divorce of the parties or upon the dissolution or annulment of the marriage. After the dissolution, divorce or annulment, any such will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce or annulment of the marriage and predeceased the testator, unless either the will or the judgment of dissolution or divorce expressly provides otherwise. Remarriage to the former spouse revives any provisions of the will that were nullified under this section, unless another will has been executed. Nothing provided in this section shall affect any rights of the testator's children in gestation.

SECTION 2. This act shall take effect and be in force from and after July 1, 2000.