Estate Planning: Prenuptial Agreements Need to be Re-Executed After a Divorce
November 14, 2008
Prior to their marriage, a couple entered into a prenuptial agreement waiving any right to property brought into the marriage by the other party or any property separately titled to the other party during the marriage. The agreement also stated that “in the event of separation and reconciliation the parties understand that matters dealing with property division shall continue to be binding unless agreed to otherwise in writing.”
The couple separated a month after being married and then divorced two years later. The couple entered into a marital settlement agreement upon their divorce, but six months later, the couple remarried.
Two years after remarrying, the husband died intestate. The wife, as personal representative of her husband’s estate, filed petitions to determine exempt property, to determine homestead status of real property and for family allowance. The husband’s children from a previous marriage argued that the prenuptial agreement prevented the wife from receiving any part of their father’s estate.
The trial court agreed concluding that the prenuptial remained valid because the terms “separation and reconciliation” encompass “divorce and remarriage.” The appellate court reversed, holding that a prenuptial agreement generally does not survive divorce and that “separation and reconciliation” does not mean the same thing as “divorce and remarriage.”
Therefore, the prenuptial was discharged by performance after the couple’s divorce and terminated.
The Catch…What you need to know is that if a couple wants to get remarried they should execute a new fully negotiated prenuptial agreement.
Herpich v. Estate of Herpich, 994 So. 2d 1195 (Fla.App. 5 Dist. 2008)
Prior to their marriage, a couple entered into a prenuptial agreement waiving any right to property brought into the marriage by the other party or any property separately titled to the other party during the marriage. The agreement also stated that “in the event of separation and reconciliation the parties understand that matters dealing with property division shall continue to be binding unless agreed to otherwise in writing.”
The couple separated a month after being married and then divorced two years later. The couple entered into a marital settlement agreement upon their divorce, but six months later, the couple remarried.
Two years after remarrying, the husband died intestate. The wife, as personal representative of her husband’s estate, filed petitions to determine exempt property, to determine homestead status of real property and for family allowance. The husband’s children from a previous marriage argued that the prenuptial agreement prevented the wife from receiving any part of their father’s estate.
The trial court agreed concluding that the prenuptial remained valid because the terms “separation and reconciliation” encompass “divorce and remarriage.” The appellate court reversed, holding that a prenuptial agreement generally does not survive divorce and that “separation and reconciliation” does not mean the same thing as “divorce and remarriage.”
Therefore, the prenuptial was discharged by performance after the couple’s divorce and terminated.
The Catch…What you need to know is that if a couple wants to get remarried they should execute a new fully negotiated prenuptial agreement.
Herpich v. Estate of Herpich, 994 So. 2d 1195 (Fla.App. 5 Dist. 2008)