Definitions of uncommon words contained in Prenup
Abridge: To reduce the length of (a written text); condense.
Accretions: The growth of the value of a particular item given to a person as a specific bequest under the provisions of a will between the time the will was written and the time of death of the testator—the person who wrote the will.
Augmented Estate: An augmented estate can exceed what is contained in the decedent’s Will. For example, an augmented estate can include any property transferred or gifted to third parties within one year of the decedent’s death, Pay on Death Accounts, Transfer on Death Accounts, In Trust For Accounts with named beneficiaries, property or accounts held in survivorship estates the balance of which would otherwise automatically become the property of the other party named on the account upon the death of the testator. The decedent’s interests in joint accounts; revocable trusts, half of any property held as tenants in the entirety or in common, life insurance policies, the value of pension plans, property held jointly with the surviving spouse, property inside a revocable trust (also known as a living trust).
Bequest: A gift of Personal Property, such as money, stock, bonds, or jewelry, owned by a decedent at the time of death which is directed by the provisions of the decedent’s will; a legacy. A bequest is not the same as a devise (a testamentary gift of real property) although the terms are often used interchangeably. When this occurs, a bequest can be a gift of real property if the testator’s intention to dispose of real property is clearly demonstrated in the will. There are different types of bequests. A charitable bequest is a gift intended to serve a religious, educational, political, or general social purpose to benefit mankind, aimed at the community or a particular segment of it. Charitable bequests also reduce the estate taxes that might be owed on the estate left by a decedent. A demonstrative bequest is a gift of money that must be paid from a particular source, such as a designated bank account or the sale of stock in a designated corporation. A general bequest is a gift of money or other property that can be paid or taken from the decedent’s general assets and not from a specific fund designated by the terms of the will.
Codicils: A supplement or appendix to a will.
Community Property: Property that is earned or acquired during the marriage.
Contemporaneous: Originating, existing, or happening during the same period of time.
Contingent: The word contingent denotes that there is no present interest or right but only a conditional one which will become effective upon the happening of the designated condition. A contingent remainder is the right to possess property after the death of a person who holds a life estate in the land provided a specified condition is fulfilled. An owner of land who grants a life estate to a son, with a remainder to a daughter if she marries, has created a contingent remainder, the contingency being the daughter’s marriage.
Covenants: An agreement, contract, or written promise between two individuals that frequently constitutes a pledge to do or refrain from doing something. The individual making the promise or agreement is known as the covenantor, and the individual to whom such promise is made is called the covenantee. Covenants are really a type of contractual arrangement that, if validly reached, is enforceable by a court. They can be phrased so as to prohibit certain actions and in such cases are sometimes called negative covenants.
Curtsey: Curtsey refers to the surviving husband’s life estate rights while dower refers to the surviving wife’s life estate right.
Death Intestate: Means the decedent died without a Will.
Decedent: A person who has die
Derivative: Coming from another; taken from something preceding, secondary; as derivative title, which is that acquired from another person. There is considerable difference between an original and a derivative title. When the acquisition is original, the right thus acquired to the thing becomes property, which must be unqualified and unlimited, and since no one but the occupant has any right to the thing, he must have the whole right of disposing of it. But with regard to derivative acquisition, it may be otherwise, for the person from whom the thing is acquired may not have an unlimited right to it, or he may convey or transfer it with certain reservations of right. Derivative title must always be by contract.
Descent: the rules of inheritance established by law in cases in which there is no will naming the persons to receive the possessions of a person who has died. The rules of descent vary somewhat from state to state and will usually be governed by the law of state in which the deceased party lived. Depending on which relatives survive, the estate may go all, or in part to the surviving spouse, and down the line from a parent to children (or if none survive, to grandchildren), or up to surviving parents, or collaterally to brothers and sisters. If there are no survivors among those relatives, then aunts, uncles, cousins, nieces and nephews may inherit, depending on their degree of kinship (closeness of family relationship), state laws of descent and distribution, or whether the deceased person lived in a community property state (in which the wife has a survivorship right to community property).
Devise: To give by your last will and testament.
Dower: Dower rights are the rights that a non-owner spouse has in the real property of 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 or income produced by any farm, rental or other real property that he owned for the rest of her life.
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.
Elisor: A person appointed by the court to perform a specific function.
Equitable: Just, based on fairness and not legal technicalities. Refers to positive remedies employed by the courts to solve disputes or give relief.
ERISA: The Employee Retirement Income Security Act of 1974, or ERISA, protects the assets of millions of Americans so that funds placed in retirement plans during their working lives will be there when they retire.
ERISA is a federal law that sets minimum standards for pension plans in private industry. For example, if an employer maintains a pension plan, ERISA specifies when an employee must be allowed to become a participant, how long they have to work before they have a non-forfeitable interest in their pension, how long a participant can be away from their job before it might affect their benefit, and whether their spouse has a right to part of their pension in the event of their death. Most of the provisions of ERISA are effective for plan years beginning on or after January 1, 1975.
Estoppel: Legal rule of evidence (and not a cause of action) which (1) prevents a party from making an allegation or denial that contradicts what it had previously stated, or what has been legally established.
Et Al: and others
Et Seq: and what follows, and the following
Exempt Property: Personal property, home furnishings.
Ex parte: is a term meaning “from one party”. An ex parte decision is one decided by a judge without requiring all of the parties to the controversy to be present. Ex parte means a legal proceeding brought by one person in the absence of and without representation or notification of other parties.
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.
Inchoate: Not complete or fully developed, not organized, lacking order.
Indemnify: to guarantee against any loss which another might suffer. Example: two parties settle a dispute over a contract, and one of them may agree to pay any claims which may arise from the contract, holding the other harmless.
Intestate Share: A surviving spouse can inherit as much as your entire estate but not less than 50%.
Inure: To result; to take effect; to be of use, benefit, or advantage to an individual. For example, when a will makes the provision that all Personal Property is to inure to the benefit of a certain individual, such an individual is given the right to receive all the personal property owned by the testator upon his or her death.
Issues: The goods and profits of the lands of a defendant against whom a writ of distringas or distress infinite has been issued, taken by virtue of such writ, are called issues. Distringas: A writ directed to the sheriff of the county in which a defendant resides, or has any goods or chattels, commanding him to distrain upon the goods and chattels of the defendant, in order to compel his appearance. Distrain seizes the personal property of another located upon the distrainor’s land in satisfaction of a claim, as a pledge for performance of a duty.
In toto: in it’s entirety. Completely, totally, the whole thing.
Laches: A legal doctrine that bars a claimant from receiving relief
where the claimant’s delay in pursuing the claim has operated to the prejudice of the opposing party.
Life Estate: the right to occupy or use real property 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.
Marital property: Property that is earned or acquired during the marriage.
Marvin V. Marvin, 18 Cal.3d 660 (1976).
Brief Fact Summary. Plaintiff and defendant lived in a non-marital relationship, with an oral agreement to share equally all property accumulated. Upon dissolution of their relationship, plaintiff brought suit to enforce the oral agreement. Synopsis of Rule of Law. The California court found that partners in non-marital relationships may bring claims for property division based on both express and implied contracts.
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.
Quasi Community Property Rights: in community property states, property acquired by a couple who have not been married, but have lived and purchased the property as if they were married. Often this includes property purchased or received by a couple shortly before marriage. If a couple acquires property in a non-community property state, the property may be considered quasi-community property after moving to a community property state. Quasi community property is property acquired during a marriage located in a state that does not recognize community property, later treated by the courts of a community property state as community property and labeled quasi-community property. Quasi-community property is treated just like community property when one spouse dies or if the couple divorces.
Remuneration: Reward of employment as pay, salary, or wage, including allowances, benefits (such as company car, medical plan, pension plan), bonuses, cash incentives, and monetary value of the non-cash incentives.
Renunciation: The act of giving up a right. Giving up a right, such as a right of inheritance, a gift under a will, or abandoning the right to collect a debt on a note.
Separate property: Property that belongs to one of the parties.
Statutory Substitutes: That nothing in the agreement can be substituted with an exiting statue.
Tenancy by the Entirety: A type of concurrent estate in real property held by a Husband and Wife whereby each owns the undivided whole of the property, coupled with the Right of Survivorship, so that upon the death of one, the survivor is entitled to the decedent’s share.
Testamentary Distribution: Referring to a will, distribution of items contained in a will.
Testator: A deceased person who has left a legally valid will.
Trusts: A relationship created at the direction of an individual, in which one or more persons hold the individual’s property subject to certain duties to use and protect it for the benefit of others.
Individuals may control the distribution of their property during their lives or after their deaths through the use of a trust. There are many types of trusts and many purposes for their creation. A trust may be created for the financial benefit of the person creating the trust, a surviving spouse or minor children, or a charitable purpose. Though a variety of trusts are permitted by law, trust arrangements that are attempts to evade creditors or lawful responsibilities will be declared void by the courts.
The person who creates the trust is the settlor. The person who holds the property for another’s benefit is the trustee. The person who is benefited by the trust is the beneficiary, or cestui que trust. The property that comprises the trust is the trust res, corpus, principal, or subject matter. For example, a parent signs over certain stock to a bank to manage for a child, with instructions to give the dividend checks to him each year until he becomes 21 years of age, at which time he is to receive all the stock. The parent is the settlor, the bank is the trustee, the stock is the trust res, and the child is the beneficiary.
A trustee takes legal title to the trust res, which means that the trustee’s interest in the property appears to be one of complete ownership and possession, but the trustee does not have the right to receive any benefits from the property. The right to benefit from the property, known as equitable title, belongs to the beneficiary.
Unconscionable: An unconscionable bargain is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense”
An agreement, however, will not be overturned “‘merely because, in retrospect, some of its provisions were improvident or one-sided’” (Label v Label, 70 AD3d at 899, quoting O’Lear v O’Lear, 235 AD2d 466, 466), and simply alleging an unequal division of assets is not sufficient to establish unconscionability (see Cosh v Cosh, 45 AD3d 798, 799).
If the agreement is so grossly unfair that one party would face severe financial hardship while the other prospered, the court is unlikely to enforce it.
Warranties: An assurance, promise, or guaranty by one party that a particular statement of fact is true and may be relied upon by the other party.