When your family changes, your will should change with it. In New York, the cleanest way to update a will after marriage, divorce, or the birth or adoption of a child is to weigh three options against each other: add a codicil (a short, separately executed amendment), execute an entirely new will that revokes the old one, or rely on the default protections New York law already builds in. For most people whose lives have shifted in a meaningful way, a new will is the safest choice — but the right answer depends on how much is changing and how much exposure you are willing to leave to default statutes. This guide compares those paths head-to-head so you can decide which one actually protects your spouse and children, and explains the execution rules that make any update legally valid.
Why a Life Change Should Trigger a Will Review
A will only takes effect at death and must be admitted to probate in the Surrogate’s Court. Until then, it is a snapshot of your intentions at the moment you signed it. Marriage, divorce, and a new child each scramble that snapshot in a different way:
- Marriage introduces a spouse who, even if your old will ignores them, is protected by the spousal right of election under EPTL § 5-1.1-A. A surviving spouse can claim a statutory minimum share regardless of what the will says — so an outdated will can be partly overridden by law in ways you never intended.
- Divorce does not automatically erase every trace of an ex-spouse from your plan, and leaving stale provisions in place invites confusion, delay, and litigation in probate.
- A new child raises the question of guardianship, inheritance shares, and whether the child is even mentioned. An omitted after-born child can disrupt the distribution scheme you carefully built around your other beneficiaries.
If you do nothing and die without a valid will, intestacy under EPTL Article 4 controls — the state decides who inherits, in fixed proportions, with no regard for your wishes. Reviewing your will after a major life event is how you keep that decision in your own hands. (See our overview of what happens with no will.)
The Three Options, Compared
Here is how the realistic paths stack up against each other.
| Option | Best when | Effort | Main risk |
|---|---|---|---|
| Codicil (amendment) | One small, clean change — e.g., adding a new child as a beneficiary | Low — short document, but full execution still required | Conflicts with the original will; multiple codicils create a confusing paper trail |
| New will (revoke + replace) | Marriage, divorce, or any change touching multiple provisions | Moderate — drafting plus formal execution | None if executed correctly; this is the cleanest result |
| Rely on default law | You genuinely accept the statutory outcome | None | The law, not you, decides; spousal election and intestacy may produce results you dislike |
Option 1: The Codicil
A codicil is a separate instrument that amends specific provisions of an existing will. Its appeal is economy — you change one clause without rewriting everything. But a codicil is not a casual edit. Under EPTL § 3-2.1, it must be executed with the same formalities as a will: signed at the end, declared (published) as your codicil, and witnessed by at least two attesting witnesses. The convenience evaporates if you have to coordinate a full signing ceremony anyway. Worse, every codicil must be read together with the original will, and any ambiguity between the two becomes a problem for your executor. One codicil is manageable; a stack of them is a liability. Learn more about codicils and amendments.
Option 2: A New Will
For marriage, divorce, or any change that ripples through more than one clause, a brand-new will that expressly revokes all prior wills and codicils is almost always the better choice. There is no inconsistency to reconcile, no stale ex-spouse language buried in an old paragraph, and your current intentions sit in a single clean document. The trade-off is modestly more drafting, but the execution burden is identical to a codicil — and the result is far less likely to be contested. After a marriage or divorce, a new will is the option we recommend most often. Review our will-drafting overview for how the process works.
Option 3: Do Nothing and Rely on Default Law
New York provides backstops — the spousal right of election, intestacy rules — but they are blunt instruments. They protect a spouse to a minimum share, not necessarily to the share you would have chosen, and they do nothing to name a guardian for your child, exclude an estranged relative, or carry out a specific bequest. Relying on default law is a decision to let the statute write your plan. Occasionally that aligns with what you want; usually it does not.
Execution Rules That Make Any Update Valid
Whichever path you choose, the update only counts if it is executed correctly. New York’s formalities under EPTL § 3-2.1 apply to both wills and codicils:
- The testator must sign at the end of the instrument (or another person may sign in the testator’s presence and at the testator’s direction).
- The testator must declare the instrument to be their will (publication).
- There must be at least two attesting witnesses.
- The testator signs in the witnesses’ presence, or acknowledges the signature to each witness; the witnesses sign at the testator’s request and add their residence addresses.
- Both witnesses must sign within one 30-day period (there is a rebuttable presumption that the 30-day requirement was met).
Miss a step and the document can fail at probate — leaving you, in effect, with no valid update at all. See our detailed pages on New York will requirements and will execution.
One common point of confusion: a living will is a health-care and end-of-life document, not a property will. It does not distribute your assets and is not a substitute for updating the will that governs your estate. Read more on the living will distinction.
FAQ
Does divorce automatically cancel everything I left to my ex-spouse in New York?
You should not assume so. The safe, certain course is to execute a new will after a divorce so that your current wishes are unambiguous and there is no stale language for a court to interpret.
Is a codicil cheaper or easier than a new will?
A codicil is shorter to draft, but it requires the exact same execution formalities under EPTL § 3-2.1 — two witnesses, signing at the end, publication, and the 30-day window. For anything beyond a single tidy change, a new will is usually the cleaner result.
My spouse isn’t in my old will. Are they protected?
Partly. Under EPTL § 5-1.1-A, a surviving spouse can claim a statutory minimum share through the right of election regardless of the will. But that minimum may be far less than you’d want them to have — which is exactly why updating after marriage matters.
What happens if I never update my will and it’s found invalid?
If you have no valid will, your estate passes by intestacy under EPTL Article 4, and New York law dictates who inherits and in what shares — with no say from you.
Talk to Morgan Legal Group
Marriage, divorce, and a new child are exactly the moments when an outdated will does the most damage. Whether you need a single codicil or a fresh will that revokes the old one, the safest path is a properly drafted, properly executed document — reviewed against your current family and New York law.
Russel Morgan, Esq. and the team at Morgan Legal Group serve clients across New York State. Schedule a 30-minute consultation to update your will with confidence.
Further reading from Morgan Legal Group: the last will and testament in New York.