Q: Why can our stepmother break her word and claim half of DadŐs estate plus a family allowance and something called an exempt property allowance? She mislead Dad and us.
A: As senior citizens enter into second and third marriages, most neglect to protect themselves and their loved ones by doing a Marital Agreement. Many rely on the word of the other, or feel that by keeping everything in one name, the property brought into marriage will be protected. Sadly for inheritance purposes, those people are wrong.
The law creates a number of rights upon marriage, one of which is the right to inherit up to half of each otherŐs property depending upon the length of the second marriage.
Some or all of these rights can be waived voluntarily by entering into a Marital Agreement, thereby wiping the legal slate clean. Thereafter through a Will or otherwise, each party can include the other to the extent that he or she desires.
There are two kinds of a Marital Agreements - a prenuptial or antenuptial which is signed before marriage and a postnuptial which is signed after marriage. For obvious reasons, any kind of contemplated understanding needs to be set down in writing before the ceremony. Otherwise there is no incentive (except divorce) to encourage cooperation. (The leverage of saying no signing, no marriage is lost afterwards.)
A Marital Agreement can be just as comprehensive as agreed to by both parties. One of the keys, however, is disclosure. Unless an asset is specifically described or a source of income, such as social security or a pension, is disclosed, the Marital Agreement will not cover such items.
Yes, the two of you can just write something out or even go to one attorney who will draft the document. But to make the document as "bullet proof" as possible, one attorney should draft the document and then one of the parties needs to take the Agreement to another attorney who will examine it and explain the legal consequences from that personŐs point of view.
Although it means involving lawyers (two of them even), such an approach will take away the following traditional legal grounds of attacking the Agreement: the attorney was not representing me or looking out for me; if only that attorney had explained the legal consequences I would have decided otherwise; I was never told that would happen; I didnŐt think "that" was covered; etc.
Asking for a Marital Agreement is not a sign of mistrust. It is just legally putting in place what has already been agreed upon. Plus it removes each person from pressure from relatives coveting the new spouseŐs assets, as well as clarifying for an incapacitated spouseŐs agent or for a deceased spouseŐs personal representative what "rights" such a fiduciary has an obligation to enforce in the absence of a legal document.
Without an Agreement, the stepmother or stepfather can become just like the characters we all remember from our childhood fairy tales. So if a Marital Agreement is needed, just do one. And if the existing one did not have the involvement of two attorneys or did not identify significant assets, now is the time to take corrective steps.