Do I Need a Will If I Am Married?

Guidance from a Birmingham, Alabama estate planning attorney.

Many married couples assume they do not need a will.

The thinking is simple: “If something happens to me, everything will go to my spouse.”

In some cases, that is true. But in many cases, it is not. And even when it is, the process can be far more complicated, expensive, and stressful than most people expect.

The real question is not just who inherits. It is how it happens—and what your family has to go through to get there.

Do I Need a Will If I Am Married?

If you die without a will, your probate estate is distributed according to your state’s intestacy laws. These are default rules created by the state—not you.

In Alabama:

If you are married, your spouse does not always inherit everything.

• Spouse only (no children or parents):

  
  

  The surviving spouse inherits 100% of the probate estate.

  
  

• Spouse and surviving parents (no children):

  
  

  The surviving spouse receives the first $100,000 plus one-half of the remaining balance, with the remainder passing to the parents.

  
  

• Spouse and children (no stepchildren):

  
  

  The surviving spouse receives the first $50,000 plus one-half of the remaining balance, and the children share the rest.

  
  

• Spouse and children (stepchildren):

  
  

  The surviving spouse receives one-half of the probate estate, and the children share the remaining half.

  
  

See Ala. Code § 43-8-41.

Surviving Spouse Rights and Allowances

In addition to any inheritance under intestacy laws, Alabama law provides statutory protections for surviving spouses to help support them during estate administration.

Homestead Allowance

The homestead allowance is $18,800 (as of July 1, 2023). See Ala. Code § 43-8-110.

This amount is paid before other estate debts. If there is no surviving spouse, minor or dependent children may claim the allowance jointly.

Exempt Property Allowance

The exempt property allowance is $9,400 (as of July 1, 2023). See Ala. Code § 43-8-111.

This may include household furnishings, vehicles, appliances, and personal effects. If there is no surviving spouse, the decedent’s children are entitled to the same value jointly.

Family Allowance

The family allowance is $18,800 (as of July 1, 2023). See Ala. Code § 43-8-112.

This allowance provides support for the surviving spouse and minor dependent children during probate. It may be paid as a lump sum or in periodic payments and has priority over most claims, but not over the homestead allowance.

Important: 

These allowances generally must be affirmatively claimed during probate and are in addition to any inheritance under the state’s intestacy laws.

• Per Ala. Code § 43-8-116, the dollar amounts listed above are adjusted every three years.

The Problem: The State Is Making These Decisions—Not You

These laws are designed as a default plan. But they are not personalized to your family.

They do not consider:

• Your relationships

• Your intentions

• Your concerns about how assets should be managed

• Whether your children are ready to inherit

  
  

Without a will, you are leaving these decisions to a formula.

What Makes Things Harder Without a Will?

Even if the outcome is similar to what you would have wanted, the process can be significantly more difficult for your spouse.

1. Your Spouse Will Have to Post a Bond

The court will require your spouse to post a bond before serving as the personal representative (executor) of your estate.

A bond is essentially an insurance policy that protects the estate—but it comes at a cost and adds another layer of complexity.

With a properly drafted will, you can often waive the bond requirement, making the process easier and less expensive.

2. The Court Will Require a Formal Inventory

Without a will, your spouse will be required to file a detailed inventory of your assets with the court.

This can:

• Take time to prepare

• Increase administrative burden

• Create additional legal expenses

  
  

A will can streamline or reduce some of these requirements.

3. The Court Chooses Who Is in Charge

If you do not have a will, the court decides who will serve as the personal representative of your estate.

While your spouse is often given priority, it is not automatic in every situation—and it can lead to complications or disputes.

With a will, you make that decision in advance.

4. Delays and Additional Costs

Without a will, the probate process is often:

• More time-consuming

• More expensive

• More stressful for your family

  
  

Your spouse may face unnecessary delays at a time when they are already dealing with loss.

What a Will Allows You to Control

A will gives you the ability to make clear, legally binding decisions, including:

• Who will receive your assets

• Who will serve as personal representative

• Whether a bond is required

• How assets should be distributed

• How minor children’s inheritance should be managed

  
  

It replaces uncertainty with clarity.

Not Everything Is Controlled by Your Will

A will is a powerful tool—but it does not control everything you own.

Some assets pass outside of your will automatically. These are called non-probate assets, and they transfer based on how they are titled or who is named as the beneficiary.

Common examples include:

• Life insurance policies with a named beneficiary

• Retirement accounts (such as IRAs and 401(k)s) with a named beneficiary

• Bank or investment accounts with payable-on-death (POD) or transfer-on-death (TOD) designations

• Jointly owned property with right of survivorship

These assets pass directly to the named beneficiary or surviving owner—regardless of what your will says.

This is where many estate plans unintentionally break down.

For example:

• If an ex-spouse is listed as a beneficiary, they may inherit those assets

• If children are named directly, they may receive assets outright, even if they are minors or not financially ready

• If beneficiary designations are inconsistent with your will, it can create confusion and unequal distributions

A will does not override these designations.

That is why estate planning is not just about creating documents—it is about making sure everything works together.

A complete plan includes:

• A will (and often a trust)

• Properly coordinated beneficiary designations

• Correct asset titling

When these pieces are aligned, your plan works as intended. When they are not, even a well-drafted will may not produce the outcome you expect.

This distinction becomes clearer when you look at how these rules play out in a typical family situation.

A Simple Example

Consider a married couple in Alabama with two children.

If one spouse dies without a will, the estate may be split between the surviving spouse and the children. This can create unexpected complications, especially if the children are minors.

Now imagine the same family with a properly drafted will.

The will can:

• Ensure the surviving spouse is provided for

• Delay distributions to children until an appropriate age

• Appoint a trusted person to manage the estate

• Simplify the probate process

  
  

The difference is not just legal—it is practical.

While this type of planning is important for any family, it becomes even more critical in blended family situations.

Blended Families Often Require More Than a Simple Will

For blended families, a basic “everything to my spouse” plan often does not work.

If all assets pass outright to a surviving spouse:

• They have full control over those assets

• They can change their estate plan at any time

• They are not legally required to leave anything to your children

This creates a real risk that biological children from a prior relationship could be unintentionally disinherited.

Even in strong families, circumstances change—remarriage, financial needs, and shifting relationships can all affect what ultimately happens.

A will can help, but it has limitations in this situation.

A trust is often the better solution.

With a properly designed trust, you can:

• Provide for your spouse during their lifetime

• Preserve assets for your biological children

• Control how and when assets are distributed

• Reduce the risk of conflict or unintended outcomes

Blended families require more precise planning. A trust allows you to care for your spouse while protecting your children—something a simple will often cannot fully accomplish.

The Bottom Line

Being married does not eliminate the need for a will.

It makes it more important.

A will ensures:

• Your spouse is protected

• Your family avoids unnecessary complications

• Your wishes—not the state’s default rules—control what happens

  
  

Your Next Step

Estate planning does not have to be complicated, but it does need to be done correctly.

At Provident Law, we help individuals and families in Alabama and Florida create estate plans that provide clarity, simplicity, and protection.

If you are married and do not yet have a will—or if it has been years since you reviewed your will—now is the time to take the next step.

Schedule a consultation today to make sure your plan reflects your life, your family, and your wishes.

About the Author

Colin McMichen is an experienced attorney and the founder of Provident Law / Estate Planning LLC, a Birmingham, Alabama-based firm. With a focus on estate planning and probate law, Colin is dedicated to helping individuals and families in Alabama and Florida navigate complex legal matters with confidence.

Disclaimer

This article is intended to provide general information and help you think through important estate planning decisions. It is not legal advice and does not create an attorney-client relationship. Because every situation is different, we encourage you to consult with an experienced estate planning attorney to discuss your specific goals and needs.