Many seniors remarry after their marriages have ended, either through divorce or death of a spouse. Tensions, which can lead to expensive court battles between spouses married later in life with children by previous marriages, often arise. Couples often enter into prenuptial agreements designed to protect the property rights of each spouse.

Frequently, interaction between the provisions of a will and those of a prenuptial agreement create issues.

The Bonnie and Clyde episode

Bonnie P.’s will left all her property to R. Clyde, her son by a previous marriage. Clyde assumed that he was entitled to everything that was in his mother’s name: real estate, bank accounts and brokerage accounts. He believed that Bonnie’s husband, Billy P., had no claim to any of that property. Acting on that assumption, Clyde filed the will for probate and took possession of all of his mother’s property.

Bonnie and Billy had signed a prenuptial agreement prior to their marriage. The prenuptial agreement declared certain property as separate property. The agreement could have provided that income from separate property would remain separate property. However, it did not do so and, therefore, under Texas law, the income from the separate property became community property. Consequently, Billy contended that the prenuptial agreement gave him rights to certain property in Bonnie’s estate. He filed suit to recover that property.

Billy brought a suit for conversion, which basically stated that Clyde had taken possession of property that belonged to Billy. Billy did not contest that Bonnie’s will left all her property to Clyde. However, he contended that Bonnie could not give away Billy’s one-half of any community property that was created during the marriage. Billy sought to have awarded to him one-half of the sums in Bonnie’s bank accounts that was accumulated interest (including interest accumulations relevant to her CDs). He also sought for himself one-half of all sums in her brokerage accounts, which represented accumulated interest and dividends (including stock that had been purchased with interest or dividends). The court agreed with Billy and awarded him all of the property he requested.

The expense of the lawsuit could have been avoided if an attorney had examined both the will and the prenuptial agreement prior to the filing of the will for probate and determined that Billy would be entitled to his one-half of the community property. The will could have been probated as an independent administration. Clyde would have been appointed as executor in accordance with the will’s provisions. Through the administration, Clyde would have filed an inventory of the property, listing separate and community property appropriately. Subsequently, Clyde would have distributed all separate property and one-half of the community property to himself and the other half to Billy.

The bride of the father episode

LaVonne J. offered for probate the Last Will and Testament of her husband, Stuart. Dana, Stuart’s daughter by a previous marriage contested the will on the basis that LaVonne had unduly influenced Stuart in making the will. The contested will left everything to LaVonne except real property, which went to Dana, subject to LaVonne’s right to a possessory homestead interest during her lifetime. Stuart’s previous will left all his property to Dana.

A prenuptial agreement between LaVonne and Stuart provided that LaVonne’s right to remain on real estate owned by Stuart terminated if she remarried or if another man lived with her on the property on a regular basis. However, language in the second will purported to invalidate the prenuptial agreement.

Dana based her claim of undue influence on these facts: (1) LaVonne initiated the relationship with Stuart; (2) at the time, Stuart, age 68, had been recently widowed and was despondent over his wife’s death; (3) Stuart had a passive personality, sought to please and avoid conflict; (4) LaVonne moved in with Stuart prior to the marriage; and (5) shortly before the marriage LaVonne became a joint tenant with right of survivorship on Stuart’s checking account and beneficiary on his life insurance policies. In addition, there was evidence that, after they married, LaVonne exercised control over Stuart’s personal and social life to a large degree.

A private investigator Dana hired provided evidence that LaVonne was seeing a man who was frequently spending the night with her.

Despite the facts, Dana was not successful in convincing a jury that LaVonne had unduly influenced Stuart in drafting the second will. However, Dana contended that LaVonne, in accordance with the prenuptial provision agreement, had forfeited her right to possession of the real estate by cohabitation with her boyfriend.

LaVonne contended that the second will did away with the prenuptial agreement and, therefore, her actions vis-à-vis her boyfriend was not relevant. The judge ruled that, as a matter of law, the provision in the will was Stuart’s unilateral act and that a prenuptial agreement could not be invalidated by the action of one of the parties to the agreement. Therefore, the prenuptial agreement remained in place.

The jury agreed with Dana that LaVonne had forfeited her right to live on the property under the prenuptial agreement. The end result was Dana was the recipient of all her father’s property under the second will, just as she would have been under the first will.

The moral of the story

Prenuptial agreements are valuable tools to insure that property a spouse wishes to leave to children of a previous marriage will be safe from claims of the other spouse. Drafting of prenuptial agreements and wills must be coordinated, each document reviewed and the interactions of each considered in determining how to proceed in administration of the estate of a party to them. Both of the estates in the hypotheticals described above were substantially depleted through litigation due to lack of coordination and assessment.

- Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth, Texas. She lives and practices in beautiful Somervell County, near Chalk Mountain. She can be contacted by phone at (254) 797-0211 or by email at swreed2@yahoo.com.