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 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 use a waiver. They make 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 after signing a waiver. 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 waiver or 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.]”

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[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.