Spouse’s Waiver of Estate Claim by Agreement

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 contract to this effect.

Tim and Terri may certainly sign an antenuptial (also known as prenuptial) agreement, by which they waive their respective interests in each other’s estates upon death. The Massachusetts courts have long recognized this type of waiver. In addition, an applicable Massachusetts statute regarding antenuptial agreements notes the following:

At any time before marriage, the parties may 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.

Generally, in order for a prenuptial agreement to be considered valid and enforceable, it must be in writing; signed by the parties voluntarily under no signs of duress or fraud; made after full disclosure of the parties’ assets; conscionable to enforce, as the agreement is not against countervailing equities; and the parties don’t relieve themselves of their legal obligations during the marriage through the agreement.

In a 2009 case, the Appeals Court discussed the claim of a widow who sued the executor of her husband’s estate. She claimed that, even though she signed a prenuptial agreement in which she waived any claims against her husband’s estate, the agreement was invalid, and that 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; also, she claimed that she had inadequate legal representation due to the “inexperience” of her attorney, whom she had chosen herself.

The Court upheld the agreement and held that it made fair and reasonable provisions to the widow. The Court also noted that the husband’s failure to list his mortgage liabilities did not materially affect the widow’s decision to sign the agreement—in fact, it played in her favor as applied to determining her husband’s net worth. The Court upheld the agreement.

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, and that 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.]”

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.
[1] Mass. Gen. Laws, ch. 209 s. 25

[2] Rostanzo v. Rostanzo, 73 Mass. App. Ct. 588 (2009).

[3] Id., at 116.

[4] Id., at 115.

[5] Id., at 117.

Appointment of Representation for Indigent Guardians – Recent Case Law

Is an indigent guardian or de facto parent whose guardianship of a child is subject to removal entitled to legal counsel? This was the issue addressed in a recent decision of the Massachusetts Supreme Judicial Court.

Guardianship of K.N. addressed the case of a child, born to a 15-year-old mother, whose maternal grandmother was granted guardianship of the child. Ten years later, the mother of the child filed a petition for removal of the child from the grandmother’s care. The mother also filed an emergency motion to return the child to her, which was granted. The grandmother filed a motion the following day, seeking the appointment of counsel; that motion was denied.

The grandmother filed a motion to reconsider, having retained counsel, but her motion was dismissed due to a procedural error, and her counsel then withdrew. The child eventually appealed, through counsel, claiming that the guardian’s procedural due process rights required that she be allowed to have counsel appointed in order to represent her interests. Alternatively, the child argued, the equitable powers which reside with the Probate and Family Court allowed the Court to appoint counsel for the guardian.

“We conclude that guardians who have established a de facto parent relationship with their wards do not have a liberty interest in that relationship such that they have a procedural due process right to counsel,” the Court noted. “We hold, however, that the equitable powers of the Probate and Family Court allow a judge of that court to grant a motion requesting counsel for a guardian in a removal proceeding where the judge, in his or her sound discretion, concludes that doing so would materially assist in determining the best interests of the child.” As with all issues involving the custody of children, the best interests of the child will be the governing factor here.

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

[1] Guardianship of K.N., 476 Mass. 762 (2017).

[2] Id., at 762.

Granting Property While Also Reserving a Power of Appointment Recent Case Law

In a recent case, the Massachusetts Appeals Court reviewed whether a testator may grant property while reserving to herself a power of appointment over the same property. Skye v. Hession involved a testator who granted her home to her three daughters and her son-in-law in equal shares, while reserving for herself a life estate, which allowed her to live in the home while she was alive. The testator’s intent in doing this was to avoid certain “spend-down” provisions or lien provisions of MassHealth, the Massachusetts Medicaid program, which currently has a “look-back” period of five years.

In the deed, the testator also reserved for herself a special power of appointment, which allowed her to appoint the property to any person except herself, her creditors, her estate, or her estate’s creditors. This option was exercisable by either deed or will.

Two years later, the testator executed a new will, whereby she decided that her daughters and son-in-law should receive unequal shares of her property. She left one daughter (the plaintiff in the case) 5% of the property, reducing her share by exercising her power of appointment. The daughter sued, claiming that the power of appointment in the original deed was improper and void.

The Appeals Court ultimately sided with the defendants but acknowledged the plaintiff’s argument regarding the invalidity of the power of appointment. “We acknowledge the existence of some apparent tension between the grant of the remainder interests and the reservation of the power,” the Court noted. “The former granted the parties a present ownership interest, but the latter permitted Margaret to effectively terminate or alter those interests by exercise of the special power of appointment.”

The Court explained that interests are considered repugnant to one another where a grant of property includes two different conditions, the fulfillment of one of which breaching the other. However, the Court explained, that was not the case here: because the testator reserved for herself the power of appointment, she did not grant to the grantees a fee simple absolute—a grant with no limitations. Instead, she granted a fee simple defeasible, which is a lesser estate. “Because of the reservation of the life estate, the deed conveyed not present possessory estates but rather remainder interests; and, because of the reservation of the power, the remainder interests were defined, in part, by this limitation, and they were in the nature of fees simple defeasible,” the Court held. “Had the deed merely reserved to [the testator] a life estate, this, of course, would have been the case. Here, the additional reservation of the power of appointment resulted in a grant of a lesser estate.”

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

Id., at 5-6.
Id., at 8.
Id., at 7.

Divorce on Grounds of Cruel and Abusive Treatment

Which of the following scenarios may give rise to a divorce based on the fault ground of cruel and abusive treatment:

1. A husband publicly makes false accusations that his wife is having multiple affairs with her medical patients; he once threatened to slash her.

2. A wife calls her husband vile names and berates him in front of their children; she has also blackened his eye one two occasions.

3. A husband forces himself upon his wife and has sex with her, despite knowing that he has a sexually transmitted disease.

4. A wife forces her wife to sleep alone in the attic, orders her to leave the marital home, and slaps her multiple times on multiple occasions.

The answer? All of the above!

Cruel and abusive treatment is a fault ground for divorce in Massachusetts, along with many other jurisdictions. It has been defined by the Massachusetts courts to mean “that it must ‘appear to be, at least, such cruelty as shall cause injury to life, limb or health, or create a danger of such injury, or a reasonable apprehension of such danger upon the parties continuing to live together. This is broad enough to include mere words, if they create a reasonable apprehension of personal violence, or tend to would the feelings to such a degree as to affect the health of the party, or create a reasonable apprehension that it may be affected.’”

As noted above, cruel and abusive treatment includes words as well as physical actions, provided that those words either create an apprehension or fear of violence, or hurt a spouse to such extent that the spouse’s health is reasonably affected. As the Supreme Judicial Court explained in one case: “acts or words are sufficient to constitute cruel and abusive treatment within the purview of R. L. c. 152, § 1, now G. L. c. 208 § 1, where the acts are committed or the words are spoken with a malevolent motive, or intention to injure, or to cause suffering to the libelant, if it is found that injury or the danger of injury to the libelant’s life, limb or health, or a reasonable apprehension thereof, is thereby caused.” In that case, the wife claimed to suffer serious mental suffering (so much so that her physical health was impacted) after she learned of her husband’s infatuation with another woman and his intentions to continue his relations with the other woman.

The defendant’s “malevolent intent” or the intent to hurt, is required to prove cruel and abusive treatment. From case law, it seems debatable whether one instance of cruelty is enough to prove cruel and abusive treatment, or whether ongoing cruelty is necessary: while some cases have granted a divorce based on this ground involving only one major incident, others have declined to do so.

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.
[1] Brown v. Brown, 323 Mass. 332 (1948), quoting Bailey v. Bailey, 97 Mass. 373 (1867).

[2] Curtiss v. Curtiss, 243 Mass. 51 (1922).

[3] See, for example, Collis v. Collis, 355 Mass. 25 (1968); Mooney v. Mooney, 317 Mass. 433 (1944); and Sylvester v. Sylvester, 330 Mass. 397 (1953).

Affidavits of Care and Custody in Massachusetts

What is an affidavit of care and custody, and when does a party need to file one?

The short answer to the latter part of that question: a party needs to file an affidavit of care and custody whenever there is a proceeding involving the care or custody of a child. In addition to filing with the court, the party must also provide a copy of the affidavit to all other parties involved.

The affidavit must include relevant information regarding care and custody of the child or children involved. Per Massachusetts General Laws, chapter 209b, section 3, this includes the following:

• The present address of residence of the child and each address at which the child has resided during the past two years;
• The names and addresses of any party to any custody proceedings involving the child in the past two years; and
• Information regarding whether the party has participated in any prior custody proceeding involving the child, whether in Massachusetts or in any other jurisdiction; the capacity in which the party has participated; and copies of any pleadings or determinations which were involved.

The affidavit must be written in a form which is in conformance with the relevant court rules. In addition, it must be revised if any new relevant information is discovered regarding care and custody. Unless good cause is shown and an extension is granted by the court, failure to file this affidavit may result in a party being sanctioned by the court.