Question about a prenuptial vs. a Will.

[diggleblop]

Ok, say I’m a millionaire and I marry this beautiful, young woman. Now, I state in the prenuptial that if we divorce or I die, she is to get 5 million of my fortune and that’s it.

I also have a will which she was in for a few years, it stated that she was to get 5 million upon my death. But a month before my death I decided to take her out of the will pretty much and just leave her a dollar.

Upon my death, which will be “more legal” for my widowed ife? The prenuptial, which states she gets 5 million upon my death or the will, which states she only gets a buck?

[simster]

@diggleblop

Ok, say I’m a millionaire and I marry this beautiful, young woman. Now, I state in the prenuptial that if we divorce or I die, she is to get 5 million of my fortune and that’s it.

I also have a will which she was in for a few years, it stated that she was to get 5 million upon my death. But a month before my death I decided to take her out of the will pretty much and just leave her a dollar.

Upon my death, which will be “more legal” for my widowed ife? The prenuptial, which states she gets 5 million upon my death or the will, which states she only gets a buck?

I would say that irregaurdless of the outcome of that, you’ve left the police with plenty of motive to ponder.

[Otto]

It will depend on the law of the jurisdiction in the will is contested.

[diggleblop]

Say this happened in New York City.

[Otto]

in which the will is contested.

[Otto]

@diggleblop

Say this happened in New York City.

Under New York State law your surviving spouse, assuming no foul play, has the right to take an elective share of your estate of 1/3 if you have any surviving children and 1/2 if you don’t. There does not appear to be any provision in the statute allowing a pre-nuptual agreement to override the statute. I did not look at all at case law to see if the situation has come before any court in the state.

IANAL etc.

[Gfactor]

In most jurisdictions, you are missing an important piece of the calculus. The widow’s share. The widow’s share permits the widow to claim a portion of the estate against the will. That’s the point of the prenup in many cases. You want to leave her $5M, but you can’t do that successfully if her widow’s share is worth more than that. With the prenup you negotiate the widow’s share in advance. So by leaving her $1:

1. You’ve accomplished little because there’s a prenup that says $5M and her widow’s share is presumably worth *more * than that if it made sense to do the prenup in the first place.

2. You’ve probably voided the prenup, which probably worsened your position by exposing the estate to her full elective share.

Elective share

[Gfactor]

@Otto

Under New York State law your surviving spouse, assuming no foul play, has the right to take an elective share of your estate of 1/3 if you have any surviving children and 1/2 if you don’t. There does not appear to be any provision in the statute allowing a pre-nuptual agreement to override the statute. I did not look at all at case law to see if the situation has come before any court in the state.

IANAL etc.

*See, e.g., * In re Greiff, 92 N.Y.2d 341, 703 N.E.2d 752, 680 N.Y.S.2d 894 (1998): IN THE MATTER OF HERMAN GREIFF, DECEASED. HELEN GREIFF, APPELLANT, WALLACE J. GREIFF ET AL., RESPONDENTS.

and

In re Estate of Poppe, New York Law Journal, January 2, 2003 (Surrogate’s Court, Nassau County)
Validity of Antenuptial Agreement Determined In a contested proceeding for letters of administration, the issue before the Court was whether the respondent, the decedent’s surviving spouse, was precluded from being appointed the administrator of his estate by virtue of the terms of an antenuptial agreement.

The antenuptial agreement provided that if one of he parties should die, the survivor had no interest in the other’s estate by way of inheritance, succession, family allowance or homestead. The agreement further provided that neither party made any representations as to the value of his or her real or personal property, and that the wife agreed not to make a claim against the decedent’s estate after his death.

The issue was whether the antenuptial agreement extinguished the interest of the decedent’s surviving spouse in his estate.

The factual circumstances surrounding the execution of the agreement revealed that the respondent was a native of the Philippines, and that although English was not her native language, she had sufficient command to pass her professional examinations in English. She testified that three days prior to her marriage to the decedent, he took her to an attorney’s office and asked her to sign the antenuptial agreement, which she saw for the first time. The agreement did not include a statement of assets and respondent was not represented by separate counsel. The meeting at counsel’s office lasted five or ten minutes. Respondent further testified that counsel had informed her that the agreement was valid for only two years.

The Court found that respondent’s lack of independent counsel, the absence of any opportunity for her to consider the terms of the agreement prior to its execution, the brevity of the meeting to review the agreement and execute it, the conversation which took place between respondent and decedent’s attorney at such time, and the absence of any disclosure regarding decedent’s assets demonstrated a level of inequality in the negotiation of the agreement which shifted the burden of proof to the petitioner to show the absence of fraud and undue influence.

The Court determined that petitioner failed to sustain this burden, introducing no facts to establish that respondent had knowingly waived her rights in the decedent’s estate. The Court held that the mere fact that respondent had a college education and a command of the English language was insufficient.

http://www.farrellfritz.com/cgi-bin/view.cgi?a=vaa&r=8&ar=88

[Otto]

@Gfactor

In most jurisdictions, you are missing an important piece of the calculus. The widow’s share.

Are you using this term interchangeably with “elective share”?

[Gfactor]

@Otto

Are you using this term interchangeably with “elective share”?

Yes. Elective share is the better term. Sorry.

[Gfactor]

In my state, this provision would probably govern the outcome if, for whatever reason, the surviving spouse actually did better under the will than under the statute (maybe there’s a particular property that the survivor was promised–the business, whatever):

700.2514 Contracts concerning succession.

Sec. 2514.

(1) If executed after July 1, 1979, a contract to make a will or devise, not to revoke a will or devise, or to die intestate may be established only by 1 or more of the following:

(a) Provisions of a will stating material provisions of the contract.

(b) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract.

c) A writing signed by the decedent evidencing the contract.
(2) The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

[Billdo]

First of all, New York Estates, Powers and Trusts Law sec. 5-1.1(f) provides that a spouse may waive the elective share:

(f) Waiver or release of right of election.
(1) A spouse, during the lifetime of the other, may waive or release a right of election, granted by this section, against a particular or any last will or a testamentary substitute, as described in subparagraph (b)(1), made by the other spouse. A waiver or release of all rights in the estate of the other spouse is a waiver or release of a right of election against any such last will or testamentary provision.
(2) To be effective under this section, a waiver or release must be in writing and subscribed by the maker thereof, and acknowledged or proved in the manner required by the laws of this state for the recording of a conveyance of real property. [i.e. notarized]
(3) Such a waiver or release is effective, in accordance with its terms, whether:
(A) Executed before or after the marriage of the spouses.
(B) Executed before, on or after September first, nineteen hundred sixty-six.
© Unilateral in form, executed only by the maker thereof, or bilateral in form, executed by both spouses.
(D) Executed with or without consideration.
(E) Absolute or conditional.

Let’s assume that the lawyer who drafted up the pre-nup knew what he or she was doing and included a properly executed waiver of the elective share.

What we have here is the intersection of the law of decedent’s estates and the law of contracts. Under estate law, the decedent’s property, after the payment of all justly due debts and expenses of administration, is distributed according to the decedent’s will (subject to the elective share, which we’re considering waived here and other matters not relevant to our discussion).

Assuming that the decedent has properly executed the final will disinheriting the spouse, and the decedent was of sound mind and otherwise had testimentary capacity, the will would be enforcable as written, and the spouse would not inherit the $5 million under the will.

However (and this is the big however), the property distributed under the will is the property remaining after the payment of debts. Under the pre-nuptual agreement (assuming it has been properly executed and otherwise valid), the deceased spouse had entered into a contract under which he agreed to give his spouse $5 million on his death. When he changed his will, he breached that contract, and the surviving spouse is entitled to sue for the damages that she suffered due to that breach, namely the $5 million she is not receiving under the will.

Assuming all of this to be true, the surviving spouse would be entitled to her $5 million from the decedent’s estate, but as a matter of contract law, rather than directly under the will.

(Note that I am not an estate lawyer, nor your lawyer. If you are planning to marry or die, please consult someone qualified in your jurisdiction.)

[Otto]

@Billdo

If you are planning to marry or die, please consult someone qualified in your jurisdiction.

Sig line!

[diggleblop]

thanks guys !

[Skylark]

I thought this thread was Question about a prenuptial vs. a Wii. Color me disappointed.