2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 4 - Wills
Article 5 - Revocation and Republication
§ 53-4-48. Effect of Testator's Marriage, or Birth or Adoption of Child; Provision in Will for Class of Children

1. Except as otherwise provided in Code Section 53-4-49, the marriage of the testator, the birth of a child to the testator, including a posthumous child born within ten months of the testator's death, or the adoption of a child by the testator subsequent to the making of a will in which no provision is made in contemplation of such event shall result in a revocation of the will only to the extent provided in the remainder of this Code section.
2. A provision in a will for a class of the testator's children shall be presumed to be made in contemplation of the birth or adoption of additional members of that class, absent an indication of a contrary intent, and the mere identification in the will of children already born or adopted at the time of the execution of the will shall not defeat this presumption.
3. If the will was made prior to an event specified in subsection (a) of this Code section, and does not contain a provision in contemplation of such an event, the subsequent spouse or child shall receive the share of the estate he or she would have received if the testator had died intestate. Such share shall be paid from the net residuum remaining after all debts and expenses of administration, including taxes, have been paid. If the residuum proves to be insufficient, then testamentary gifts shall abate in the manner provided in subsection (b) of Code Section 53-4-63. Any bequest in the will in favor of the subsequent spouse or child shall be given effect and shall count toward the intestate share. If the bequest equals or exceeds the intestate share, then the subsequent spouse or child shall receive the bequest in lieu of the intestate share provided by this subsection.

(Code 1981, §53-4-48, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2002, p. 1316, § 2.)

- Pursuant to Code Section 28-9-5, in 2002, "subsection (b)" was substituted for "paragraph (b)" in the third sentence in subsection (c).

- For article, "The Time Gap in Wills: Problems Under Georgia's Lapse Statutes," see 6 Ga. L. Rev. 268 (1972). For article discussing the pretermitted heir, see 10 Ga. L. Rev. 447 (1976). For article criticizing former Code 1933, § 113-408 as too drastic, and suggesting revisions, see 11 Ga. L. Rev. 297 (1977). For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 58 Mercer L. Rev. 423 (2006). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 68 Mercer L. Rev. 321 (2016). For note, "Advantages and Disadvantages of Intestate Death for Married Persons With an Estate of $120,000 or Less," see 9 Ga. St. B.J. 102 (1972). For comment on Thornton v. Anderson, 207 Ga. 714, 64 S.E.2d 186 (1951), see 3 Mercer L. Rev. 233 (1951); 14 Ga. B.J. 86 (1951).

This section carries forward the portions of former OCGA Sec. 53-2-76 that relate to the marriage of the testator and the birth of a child to the testator. This section indicates that the provisions apply in the event of the birth of a posthumous child within ten months of the testator's death. This section also clarifies that the adoption of a child by the testator has the same effect as the birth of a child. If the will contemplates the marriage or birth or adoption, the event will not result in a revocation of the will. Under the presumption that a testator probably would intend to treat after-born or after-adopted children the same as children already born or adopted, the section also states that a will that provides for a class of the testator's children is deemed to be made in contemplation of the birth or adoption of additional members of that class absent an indication of an intent to the contrary. Consequently, the subsequent birth or adoption of class members will not result in the revocation of the will. For example, if a testator leaves the entire estate "to my sons" and another son is born, it is presumed that the testator wanted the will to stay in effect and merely to include the new son as a member of the class. On the other hand, if a daughter is later born to the testator (an individual, in other words, who is not a member of the class), the will would be revoked rather than stay in effect and leave the entire estate only to the testator's sons. Solely for the purposes of this Code section, the mere fact that the testator names already living children will not in and of itself defeat the notion that the gift is a gift to a class of the testator's children. See Code Sec. 53-4-58 for the result when a testator fails to provide for a child in the will because the testator believes the child to be dead.

ANALYSIS

• General Consideration
• Revocation by Marriage
• Revocation by Birth of Child

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-408, are included in the annotations for this Code section.

- It clearly expresses the intention of the legislature that in every case subsequent marriage or birth of a child will revoke a will, unless the will contains a provision which is made in contemplation of such an event. Williams v. Lane, 193 Ga. 306, 18 S.E.2d 481 (1942) (decided under former Code 1933, § 113-408).

Statute applies to all wills. Friedman v. Cohen, 215 Ga. 859, 114 S.E.2d 24 (1960) (decided under former Code 1933, § 113-408).

- No exception will be made to the rule of the statute. Simpson v. Dodge, 220 Ga. 705, 141 S.E.2d 532 (1965) (decided under former Code 1933, § 113-408).

- It is incorrect to construe the statute to mean that "provision for" is the equivalent of "in contemplation of." Williams v. Lane, 193 Ga. 306, 18 S.E.2d 481 (1942) (decided under former Code 1933, § 113-408).

Under the law, the only questions to be decided are: (1) whether the marriage was subsequent to the will, and (2) whether the will makes any provision for that event. Johnson v. Cromer, 234 Ga. 73, 214 S.E.2d 644 (1975) (decided under former Code 1933, § 113-408).

- Before a will was probated, O.C.G.A. §§ 53-11-5 and53-11-10(a) provided a probate court with discretion to extend the time for the filing of responses or objections to the will in order to preserve the interests of justice; probate court properly extended the time for the decedent's widow to object or raise a claim under O.C.G.A. § 53-4-48 and to assert the statutory right to an intestate share after the initial acknowledgment and assent to the petition to probate the will which did not name the widow as a beneficiary. English v. Ricart, 280 Ga. 215, 626 S.E.2d 475 (2006).

Cited in Allen v. First Nat'l Bank, 169 F.2d 221 (5th Cir. 1948); Carter v. Graves, 206 Ga. 234, 56 S.E.2d 917 (1949); Campbell v. Allen, 208 Ga. 274, 66 S.E.2d 226 (1951); King v. Bennett, 215 Ga. 345, 110 S.E.2d 772 (1959); Houston v. Pollard, 217 Ga. 184, 121 S.E.2d 629 (1961); Lawson v. Hurt, 217 Ga. 827, 125 S.E.2d 480 (1962); Webb v. Smith, 220 Ga. 809, 141 S.E.2d 899 (1965); Lampkin v. Edwards, 222 Ga. 288, 149 S.E.2d 708 (1966); Brennan v. Rushing, 225 Ga. 85, 165 S.E.2d 840 (1969); Citizens & S. Nat'l Bank v. United States, 451 F.2d 221 (5th Cir. 1971); Jones v. Jones, 231 Ga. 145, 200 S.E.2d 725 (1973); Carr v. Kupfer, 250 Ga. 106, 296 S.E.2d 560 (1982); McPherson v. McPherson, 254 Ga. 122, 327 S.E.2d 204 (1985); Brown v. Cronic, 266 Ga. 779, 470 S.E.2d 682 (1996).

Will revoked by subsequent marriage is revoked in toto. Lavender v. Wilkins, 237 Ga. 510, 228 S.E.2d 888 (1976) (decided under former Code 1933, § 113-408).

- Will must show that the testator had in contemplation of the event, that is the testator's future marriage; and the will must contain a provision made in contemplation of such event, otherwise the will is revoked. Williams v. Lane, 193 Ga. 306, 18 S.E.2d 481 (1942) (decided under former Code 1933, § 113-408).

Provision in a testator's will that it was made "in contemplation of marriage," so that the will would not be revoked by operation of O.C.G.A. § 53-4-48(a) upon the testator's subsequent marriage did not have to identify the person the testator intended to marry. Evans v. Palmour, 274 Ga. 283, 553 S.E.2d 585 (2001).

- It is not required that a provision in the will must be of a beneficial interest in the estate of the testator, but it is sufficient if the will refers to the event and provides for the same either by making a beneficial provision or expressing the intention or desire of the testator that such future husband have no beneficial interest in her estate. Williams v. Lane, 193 Ga. 306, 18 S.E.2d 481 (1942) (decided under former Code 1933, § 113-408).

Testator may refer in his will to a woman to whom he is subsequently married, but in the absence of express reference therein to his future marriage, the will does not show that the reference to the woman was made in contemplation of such an event. Williams v. Lane, 193 Ga. 306, 18 S.E.2d 481 (1942) (decided under former Code 1933, § 113-408).

Provision in the will of a testator giving a beneficial interest in her estate to the man whom she subsequently marries, but containing no mention or reference to the event of her future marriage, does not show that the provision was made in contemplation of her marriage. The subsequent marriage of the testator automatically revokes such a will. Williams v. Lane, 193 Ga. 306, 18 S.E.2d 481 (1942) (decided under former Code 1933, § 113-408).

Provision giving a beneficial interest in the estate to a named person whom the testator subsequently marries does not show or even intimate that such provision was made in contemplation of the marriage. Williams v. Lane, 193 Ga. 306, 18 S.E.2d 481 (1942) (decided under former Code 1933, § 113-408).

To avoid revocation of a will by a subsequent marriage, it must appear in clear and unmistakable terms that the testator contemplated the event of a future marriage and made some reference to that event. Johnson v. Cromer, 234 Ga. 73, 214 S.E.2d 644 (1975) (decided under former Code 1933, § 113-408).

Revocation is made to turn not upon any provision made for the wife but upon whether the testator, by the testator's will, has made a provision for such an event. If, by the testator's will the testator had done so, the will is not revoked; if the testator has not, it is revoked. McParland v. McParland, 233 Ga. 458, 211 S.E.2d 748 (1975) (decided under former Code 1933, § 113-408).

- No agreement purporting to constitute a common-law marriage, nor cohabitation of the man and woman while holding themselves out to the public as husband and wife, nor birth of children to such parties, will constitute or prove a common-law marriage between them, when the man was legally married to another woman throughout the period of such cohabitation and relationship. Consequently, a will written by the purported wife during the cohabitation was revoked by her subsequent valid marriage to the purported husband after his divorce from his first wife. Williams v. Lane, 193 Ga. 306, 18 S.E.2d 481 (1942) (decided under former Code 1933, § 113-408).

Will is not voided by a marriage ceremony when, at that time, the caveator was incapable of contracting marriage and the ceremony was absolutely void. Graves v. Carter, 207 Ga. 308, 61 S.E.2d 282 (1950) (decided under former Code 1933, § 113-408).

When the evidence was in conflict as to whether there had been a previous marriage, the trial court was authorized to find that there had not and, therefore, that the ceremonial marriage between the testator and the caveator was valid so as to cause the revocation of the testator's will. Faulk v. Faulk, 222 Ga. 522, 150 S.E.2d 818 (1966) (decided under former Code 1933, § 113-408).

General provision disinheriting all "heirs" not expressly provided for is insufficient to show that the testator contemplated a future marriage. Johnson v. Cromer, 234 Ga. 73, 214 S.E.2d 644 (1975) (decided under former Code 1933, § 113-408).

Testamentary power of appointment cannot be exercised by a revoked will. Lavender v. Wilkins, 237 Ga. 510, 228 S.E.2d 888 (1976) (decided under former Code 1933, § 113-408).

Will exercising a power of appointment which was made in contemplation of marriage is not revoked by the subsequent marriage. Lavender v. Wilkins, 237 Ga. 510, 228 S.E.2d 888 (1976) (decided under former Code 1933, § 113-408).

Revocation by Birth of Child

Will revoked unless provision made for after-born child.

- Fact that the testator may have lived some time after the birth of the child, and failed to make any change in the testator's will, can make no difference. The will is void immediately upon the birth of the child, and nothing the testator might do or fail to do could give the will life. The will is dead as completely as if the testator had destroyed the will by burning, or any other means known to the law. Saliba v. Saliba, 202 Ga. 279, 42 S.E.2d 748 (1947) (decided under former Code 1933, § 113-408).

Son shown to have been born subsequently to the execution of a will is not entitled to recover in ejectment against a purchaser for a valid consideration who relied on the judgment of the court of ordinary (now probate court) probating the will in solemn form, and who purchased prior to any proceeding to set aside such judgment. Mitchell v. Arnall, 203 Ga. 384, 47 S.E.2d 258 (1948) (decided under former Code 1933, § 113-408).

When a proceeding is filed to probate a will which unquestionably has been revoked by the subsequent birth of a child, and no provision has been made in contemplation of that event, and the fact appears on the face of the proceedings, consent by a guardian ad litem that the will be probated is clearly beyond the scope of the guardian's authority, and on a proper application for that purpose the judgment of probate should be set aside. Saliba v. Saliba, 202 Ga. 279, 42 S.E.2d 748 (1947) (decided under former Code 1933, § 113-408).

Revocation is made to turn, not upon any provision made for the child, but upon whether the testator, by the testator's will, has made a provision for such an event. If, by the testator's will the testator had done so, the will is not revoked; if the testator has not, it is revoked. McParland v. McParland, 233 Ga. 458, 211 S.E.2d 748 (1975) (decided under former Code 1933, § 113-408).

Probate court did not err in finding the testator's will was not made in contemplation of future children and was thus invalidated by the birth of children after the execution of the will because the reference in the will to "my dependents" in the context of directing the personal representative to check on the availability of survivor benefits was insufficient to show that the testator contemplated future-born children as it did not meet the essential basic requirement of showing that the event of future-born children was in the testator's mind at the time the will was executed. Hobbs v. Winfield, 302 Ga. 23, 805 S.E.2d 74 (2017).

- Antecedent will, which makes no provision in contemplation of an adoption, is revoked by implication or inference of law by the testator' legal adoption of a minor child. The act of adopting a child, under the provisions of the adoption statute of 1941 (Ga. L. 1941, p. 305) as amended by the Act of 1949 (Ga. L. 1949, p. 1157), is the equivalent in law of the birth of a child. Thornton v. Anderson, 207 Ga. 714, 64 S.E.2d 186 (1951), for comment, see 3 Mercer L. Rev. 233 (1951); 14 Ga. B.J. 86 (1951) (decided under former Code 1933, § 113-408).

Provision in a will giving an unborn child a beneficial interest in the estate obviously is made in contemplation of the future birth of a child. Williams v. Lane, 193 Ga. 306, 18 S.E.2d 481 (1942) (decided under former Code 1933, § 113-408).

- Although an adult child of a testator met most of the requirements for virtual adoption in that the adult child had been raised by the testator as the testator's own, the doctrine of virtual adoption did not apply because the testator had made a will disposing of the testator's estate. Virtual adoption could not result in a revocation of the will under O.C.G.A. § 53-4-48(a) because that statute applied only to legal adoptions, and virtual adoption was a legal fiction arising after the adoptive parent's death. Johnson v. Rogers, 297 Ga. 413, 774 S.E.2d 647 (2015).

RESEARCH REFERENCES

Am. Jur. 2d.

- 79 Am. Jur. 2d, Wills, §§ 551, 556.

- Illegitimacy of child as affecting revocation of will by subsequent birth of child, 18 A.L.R. 91; 38 A.L.R. 1344.

Statute as to effect of subsequent birth of a child as applicable where will provides for child, in the absence of an express exception, 30 A.L.R. 1236.

Divorce as equivalent of death for the purposes of provision in will or trust in respect of survivorship as between husband and wife, 35 A.L.R. 141.

Separation agreement as affecting right of inheritance, 35 A.L.R. 1505; 34 A.L.R.2d 1020.

Rule regarding revocation of will by marriage as affected by antenuptial agreement or settlement, 92 A.L.R. 1010.

Disinheritance provision or mere nominal bequest as affecting application of statute for benefit of pretermitted children, 152 A.L.R. 723.

Remarriage of woman after death of or divorce from former husband as revoking will executed during former marriage, 9 A.L.R.2d 510.

Adoption of child as revoking will, 24 A.L.R.2d 1085.

Admissibility of extrinsic evidence to show testator's intention as to omission of provision for child, 88 A.L.R.2d 616.

Statutory revocation of will by subsequent birth or adoption of child, 97 A.L.R.2d 1044.

Divorce or annulment as affecting will previously executed by husband or wife, 71 A.L.R.3d 1297.

Devolution of gift over upon spouse predeceasing testator where gift to spouse fails because of divorce, 74 A.L.R.3d 1108.

Marriage of testator or birth of testator's child as revoking will previously made in exercise of power of appointment, 92 A.L.R.3d 1244.

Conflict of laws as to pretermission of heirs, 99 A.L.R.3d 724.

Validity of statutes or rules providing that marriage or remarriage of woman operates as revocation of will previously executed by her, 99 A.L.R.3d 1020.

Sufficiency of provision for, or reference to, prospective spouse to avoid lapse or revocation of will by subsequent marriage, 38 A.L.R.4th 117.

Pretermitted heir statutes: what constitutes sufficient testamentary reference to, or evidence of contemplation of, heir to render statute inapplicable, 83 A.L.R.4th 779.

Legal status of posthumously conceived child of decedent, 17 A.L.R.6th 593.