“’Til death do us part” may more aptly be phrased “I will follow you into the grave!” 

I’ve had a number of clients come to me that live in loveless, self-absorbed, and contentious marriages but manage to exist, having developed a certain understanding in their relationship, such as living in separate bedrooms. Many of these people feel contempt, anger, or apathy towards their spouse. For example, their spouse may be extremely stingy; wastefully dissipate money on addictions; abusive, or duplicitous and cheating on or stealing from them. Nevertheless, for a plethora of reasons, they are often resistant to divorce and want to stay in the marriage.

Many times these people think that there will be justice and a sense of dignity and self-protection if they predecease their spouse, as they believe their spouse will not be able to get anything more from them then. They believe that they can exercise some control while they’re alive to ensure that what is theirs will be carefully allocated when they pass away.

They then become disheartened and their bubble is burst upon learning that their will may not be actualized according to their wishes, and that their spouse may be able to collect under the Right of Election. The Right of Election ensures that you cannot disinherit your spouse; they are entitled to the larger of $50,000 or a third of their spouse’s net estate. Learning this motivates people to find out their options, which include: 

•Signing mutual waivers, which is a critical dimension of both Prenuptial Agreements and Postnuptial Agreements, especially amongst older couples where one or both of them have established a significant amount of wealth and have grown children who they plan on bequeathing their estate to. The fact that their spouse would be able to collect a certain minimum amount throws off the dynamics of what their children could potentially get. Under regular law, you cannot write your spouse out of your will. However, this waiver can dictate that what is written in the will dominates. 

Prenuptial and Postnuptial Agreements are increasingly popular across the board, and especially among older, more established spouses, or people with significant family wealth.

The Prenuptial Agreement is obviously an exercise of foresight, caution, and investment in insurance prior to the marriage. Sometimes, people are wary about bringing it up with their fiance because they are afraid of their fiance’s reaction. However, there are simplified prenuptial agreements that can be entered into that set forth reasonable, modified rights, and waiving the right of election is almost always included in these more narrow, limited-in-scope agreements. It is not overly offensive nor does it shock anyone’s conscience, so to speak, prior to marriage, and fiances are generally amenable to signing and don’t feel isolated in the relationship by such.   

As mentioned, often people are already married when they first learn of the right of election, feel indignant about it, and torn by their basic desire to have their wishes as expressly set forth in their will trump. Once people are married and wanting to carve out certain understandings, they can include a waiver for the right of election in a Postnuptial Agreement. Sometimes when an unhappily married client comes to me in this type of situation, they feel their spouse will be so resistant to a Postnuptial Agreement, they would rather just go through with a divorce at that point.

It is important for people to understand how wills, trusts, and estates are intertwined with divorce, including the fact that on the heels of a divorce, new wills need to be drafted, as new beneficiaries and trustees will likely need to be designated. Also, people should understand the implications of the rights that come with the marriage, such as the right to take against your spouse’s estate.

If you’re going into a marriage or contemplating a divorce and you don’t want your spouse collecting against your worth or your estate, consult with a qualified divorce attorney to put the appropriate measures in place to ensure your estate is bequeathed appropriately, within your control, and according to your wishes.

Feel free to contact The Law and Mediation Offices of Cheryl Stein with any questions.

Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
Offices in Manhattan and Brooklyn
Phone: (646) 884-2324
E-mail: cheryl@cherylsteinesq.com