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OBITUARIES
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NO OBITUARY NOTICES
WERE PUBLISHED IN
THIS WEEK'S EDITION
OBITUARIES FROM THE
JULY 15TH ISSUE
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Marital Relationships and Inheritance
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Marital Relationships and Inheritance
By Jeffery J. McKenna
 A surprising number of marriages end with one spouse trying to disinherit the other. However, the law of most states protects both husbands and wives from being disinherited by the other.
If a person fails to provide for his or her surviving spouse, or even fails to provide a certain percentage of the estate to the surviving spouse, the surviving spouse can demand and receive an “elective share” or forced share of the estate, as set by state law. This means that the surviving spouse can demand a portion of the estate, and, regardless of what is stated in the deceased spouse’s will, the surviving spouse has a right to receive at least that amount.
A spouse retains these elective share rights until and unless a decree of divorce is final. The exception is if the elective share rights are waived in a marital agreement. Marital agreements set forth in writing the exact agreement between couples regarding how much of each spouse’s individual assets (if any) will be distributed to the other upon the death of one of them. Often, each spouse will waive the right to inherit any of the assets of the other spouse.
It is preferable to execute a marital settlement agreement prior to marriage. Each party signs the agreement and knows, prior to the marriage, where they stand financially within the context of the marriage, and upon death of their spouse. Post-marital agreements (executed after marriage) can be executed if both spouses are agreeable to the settlement terms.
The provisions of pre-marital and post-marital agreements serve to protect surviving spouses. When couples who each have children from prior relationships get married, each may have sufficient assets to be unafraid of being disinherited. Each one wants to provide for his or her own children upon death, and each spouse agrees to waive any share of the other’s estate. They are happy to do so in order for their own assets to be distributed to their own children.
The same concerns and considerations by couples who draw up a premarital or postmarital contract also apply to couples who never plan to marry. As with marital agreements, safeguarding income and assets – and negotiating a cohabitation agreement in the event of termination of the relationship or death - is far easier to accomplish when neither party is angry, under stress and/or hostile.
For peace of mind, often it is wise or convenient to have marital or cohabitation agreements drafted at the same time as estate planning documents. Consult your attorney in drafting any such important documents. The attorney’s fee you pay may well save you a lot of money and heartache in the end.
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