2021 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).

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.