Tim and Terri are getting married, and Terri has two children from a previous marriage. Terri would like her estate, upon her death, to pass to her kids, rather than to Tim and his family. She wants to know whether she and Tim could sign a waiver or contract to this effect.
Tim and Terri can sign an antenuptial (prenuptial) agreement. This waives their respective interests in each other’s estates upon death. The Massachusetts courts have long recognized this type of waiver.
An applicable Massachusetts statute regarding antenuptial agreements notes the following:
At any time before marriage, the parties may use a waiver. They make a written contract providing that, after the marriage is solemnized, the whole or any designated part of the real or personal property or any right of action, of which either party may be seized or possessed at the time of the marriage, shall remain or become the property of the husband or wife, according to the terms of the contract. Such contract may limit to the husband or wife an estate in fee or for life in the whole or any part of the property, and may designate any other lawful limitations. All such limitations shall take effect at the time of the marriage in like manner as if they had been contained in a deed conveying the property limited.
A prenuptial agreement must be in writing and signed voluntarily, free of duress or fraud. The parties must fully disclose their assets. The agreement should be conscionable and enforceable, not conflicting with countervailing equities. Finally, it should not relieve the parties of legal obligations during the marriage.
Example:
In a 2009 case, the Appeals Court reviewed a widow’s claim against her husband’s estate executor. She had signed a waiver but argued that her prenuptial agreement, which waived claims against the estate, was invalid. She said she was unduly influenced in signing the agreement. The widow claimed that because her husband failed to list some of the mortgages on his properties, the agreement was invalid due to lack of full disclosure. She also claimed that she had inadequate legal representation due to the “inexperience” of her attorney; she had chosen this attorney herself.
The Court upheld the agreement and held that it made fair and reasonable provisions to the widow. It also noted the husband’s failure to list his mortgage liabilities did not materially affect the widow’s decision to sign. In fact, it played in her favor as applied to determining her husband’s net worth. The Court upheld the agreement.
Unduly Influenced?
Further, the widow claimed that her husband’s will ought to be invalidated, as he had promised her multiple provisions from his estate, yet left her only a lump sum cash devise. She claimed that the husband was unduly influenced by his attorney in making his will; she said the will was contrary to the husband’s intentions for distributing his property after his death. Moreover, she argued “that at the time she signed the antenuptial agreement, she and the decedent had a confidential relationship and that he violated that relationship with his fraudulent assurances that the agreement pertained only to divorce and that he would provide for her in his will.”
“We find nothing in the record before us to warrant or to justify disturbing the judge’s conclusion that the ‘[p]laintiff introduced no credible evidence that when the [d]ecedent executed the [w]ill he was not in good health, lacked free will to execute the [w]ill, or did not make a natural disposition of his assets[,]’” the Court explained. “It follows from our conclusion that by entering into the valid antenuptial agreement, the plaintiff waived any right that she might otherwise have had as the decedent’s widow pursuant to [the applicable statute.]”
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[1] Mass. Gen. Laws, ch. 209 s. 25
[2] Rostanzo v. Rostanzo, 73 Mass. App. Ct. 588 (2009).