Death a Prenup Protects your Will

Fact:

Property that was yours before the marriage is automatically awarded to your spouse when you die notwithstanding the terms of your will.

Death – Prenuptial Agreements Protect your Will

Your Will is useless unless you have a prenuptial agreement!

What?

I can almost hear your surprised reaction. This is a little known fact that when first learned is almost always met with surprise. You are certainly free to investigate, research, and “Google” this for independent verification. You would perform a Google search by typing the following terms “homestead rights of surviving spouse”, “elective share rights of surviving spouse”, “pretermitted share”.

Last Will and Testament

Elective Share: An elective share is a legal term relating to inheritance that describes the portion of your estate that your surviving spouse may claim instead of what you bequeathed your spouse in your will. A statutory provision that empowers a surviving spouse to choose between taking that which is provided in the will of the deceased spouse or taking a statutorily prescribed share of the estate. Typically 30% to 50%. Such election may be presented if the will leaves the spouse less than he or she would otherwise receive by statute. This election may also be taken if the spouse seeks to set aside a will that contains a provision to the effect that an attempt to contest the will defeats the rights of one to take under the will. [Also know as: widow’s share, statutory share, election against the will, or forced share.]

The amount of an elective share varies from state to state, but typically ranges from one-third to one-half of the decedent’s estate. Thus, if a decedent leaves a spouse less than the elective share amount in his or her will, the surviving spouse can make a claim for the difference in probate court.

Example [In the 9 Community Property States]: Up to 50% of your estate. 50% of the community property of the marriage, and 50% of your sole and separate property, A life estate in your primary residence, a family allowance, your personal property and home furnishings, pay on death accounts whether or not listed as a beneficiary, any and all property you may have given away within one year of your death, any property inside a revocable trust, life insurance proceeds whether or not listed as a beneficiary.

Example [In the 41 Equitable Distribution States]: one third to one half of your estate, a life estate in your home, a family allowance, your personal property and home furnishings, up to 2 cars, pay on death accounts whether or not listed as a beneficiary, any and all property you may have given away within one year of your death, any property inside a revocable trust, life insurance proceeds whether or not listed as a beneficiary.

Homestead Rights/Life Estate: An automatic statutory right a surviving spouse and minor children have to occupy or use the family homestead for the balance of his or her lifetime. The right to occupy or use a family home for the duration of one’s life. In most states it is an automatic statutory right of a surviving spouse to continue to occupy the family home for the duration of the surviving spouse’s lifetime, even if the family home has been bequeathed to a different beneficiary in the decedent’s Will.

Death inventory of estate assets

Pretermitted Share or Omitted Share: All states give spouses the legal right to inherit a portion of their deceased spouse’s estate. Assuming there is no pre-marital agreement, a surviving spouse who is not included in the decedent’s Will may take a pretermitted share or an elective share.   The pretermitted share is the same as an Elective Share. See above. Only spouses who have expressly agreed to be excluded from a will, through a prenuptial or postnuptial agreement, will have legally forgone their right to an inheritance.

Pretermitted Spouse or Omitted Heir: Is a term used to describe a person who would likely stand to inherit under a will, except that the testator (the person who wrote the will) did not include the person in the testator’s will. A Will may contain a clause that explicitly disinherits any heirs not named in the will. However, such a clause can not prevent a claim against an estate by a pretermitted or omitted heir, only a properly worded and constructed prenuptial agreement can prevent a pretermitted spouse from making a claim against the deceased husband’s Will.

Curtsey: Curtsey refers to the surviving husband’s life estate rights while dower refers to the surviving wife’s life estate right.

Dower: Dower rights are the rights that a non-owner spouse has in the real property of his or her spouse. It was originally set up when the husband was the only real property owner. It was designed to allow the non-owner wife to make sure that if her husband sold their home without her permission she would still have some protection in the value of the real property, so that if the husband later died, she could claim one third of the value or her right to live in the home or the value of income produced by any farm, rental or other real property that he owned for the rest of her life.