Beyond The Will, Client Compass

Spousal Disinheritance Through Prenuptial and Postnuptial Agreements

April 9, 2020


So you want to disinherit your spouse. As discussed last week, it’s not quite that simple. Married people have statutory rights with respect to each other’s property, and those statutory rights can trump an otherwise-valid disinheritance provision in a Will or Trust; however, those rights can be waived by contract, and that’s where the use of Prenuptial or Postnuptial Agreements can come in handy.

In either a Prenuptial Agreement (before the marriage) or a Postnuptial Agreement (following the marriage), the parties may agree to waive their respective rights to inherit from the other. The parties must make full financial disclosures to each other, and they then must agree on what shall constitute each party’s “individual property,” what (if anything) shall constitute “marital property,” and how each category of property shall be treated. Provisions can be made for the treatment of individual and marital property during the marriage, upon divorce, and/or upon the death of either spouse. The “upon-death” provisions can include full waivers and disclaimers of spousal rights, including the right to contest or oppose in any way the probate of the other’s will or codicil; to elect to take against any will or codicil of the other party; to claim statutory allowance, widow’s allowance, statutory share, etc.; or to share in the other’s estate in case of intestacy. Note that these provisions typically would not preclude either spouse voluntarily continuing to leave property to the other in a Will or Trust: either may choose to provide for the other, even if not required to do so.

Why would anyone agree to this, you might ask. With respect to a Prenuptial Agreement, the answer is often that one spouse is coming into the marriage with certain assets that he or she seeks to protect from the outset. Sometimes there is inherited wealth at issue; sometimes there is a desire to protect assets for the benefit of children from a prior relationship. With respect to a Postnuptial Agreement, the answer is typically that marital difficulties have arisen, and the parties desire to establish some certainty surrounding their respective finances without getting a divorce. This can be particularly useful in the context of a potential “gray divorce,” with parties of advanced age.

Both Prenuptial Agreements and Postnuptial Agreements – including disinheritance provisions – are valid and enforceable in Massachusetts if applicable standards are met. Both types of Agreements must be very carefully drafted, with independent counsel representing each spouse and with full financial disclosures by both sides, to best ensure that the Agreement will be upheld as enforceable upon divorce or death, as the case may be. If challenged, the Courts will carefully scrutinize the fairness of the Agreement, to confirm that there was no fraud or coercion in its execution and that its provisions were fair and reasonable both at the time of execution and at the time of enforcement. The so-called “second-look” doctrine brings even more heightened scrutiny in the case of a Postnuptial Agreement, given that parties are married at the time of execution and owe absolute fidelity to each other.

Spousal-disinheritance via a Prenuptial or Postnuptial Agreement is not a simple matter. It is not a do-it-yourself or one-size-fits-all endeavor, nor is it something one party can impose unilaterally upon the other. Under the right circumstances, however, it is a useful tool and can be worth exploring with your family law and estate-planning counsel.


Until next time!


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