General Question

laureth's avatar

Does a prenuptial agreement matter for a marriage dissolved by death?

Asked by laureth (27091 points ) August 6th, 2011

State of Michigan, if that helps.

My grandpa, after 50 years of marriage and two daughters with his first wife, decided to marry again in his elder years to a nice widow from his church. They are both of independent means, and signed a prenuptial agreement to the effect that if the marriage is dissolved, their (adult) children, and not each other, retain the property of the estate. Further, my grandpa stated in his will that he made no provision for any property for his current spouse, as she has her own means and property.

However, when he died, the house he bought with his own money (not hers) was in both of their names, and contrary to both the pre-nup, his will, and his oft-heard verbal assertions that the house will go to my aunt, it is reverting to his second wife (and because she’s suffering with Alzheimer’s, the house will either pass to her power-of-attorney-holding son, or perhaps be confiscated to pay for her assisted care, before Medicare kicks in to pay.)

I realize that this is a legal question and requires a lawyer to answer, but I’m also wondering if anyone here might know offhand if prenuptial agreements are used only in the case of divorce, or if the death of one of the spouses would also be the occasion where the pre-nup matters. As my aunt isn’t fighting for the house, it’s mostly a matter of intellectual curiosity; hence no need to consult an actual lawyer. I’ve seen online that a pre-nup can be used to “ensure that your estate is distributed according to your wishes upon your death, and is protected against additional claims by your spouse,” (source) so I’m also wondering if perhaps the lawyer who told my aunt that she doesn’t get the house is, himself, fulla crap.

As always, thanks for reading. :)

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15 Answers

zenvelo's avatar

The house in both their names would trump the pre-nup, because she would retain ownership because her name is on the deed. Joint ownership means rights of survivorship.

They would have to have a joint will or coinciding wills that directs the disposal of the house upon the death of both of them. But while she is the survivor, her trustee may do what ever he deems necessary with the house.

Pre-nups are in place to protect assets in case of a dissolution, not in case of a death.

laureth's avatar

Ah, thanks. The family situation is utter bollocks.

cazzie's avatar

Yeah, because her name is on the deed, she is co-owner. If he wanted it to pass to the aunt upon his death, her name never should have been on the deed.

john65pennington's avatar

My dad died and then my mother died. In my dads will, he left everything to my mother. When my mother died, she left everything to my brother and myself, including her house. Some of the grandchildren wanted to be part of the proceeds. My mothers will kept them out of the picture. This is why a will is so important.

laureth's avatar

@john65pennington – I agree a will is very important. My grandpa thought so too, which is why he left one. Sadly, it sounds like his legal documents are trumped by his mistake of putting his new spouse on the house’s title.

Hypocrisy_Central's avatar

In addition to what has been said, to me a prenupt is for before you get married. I can’t see anyone buying a house with their spouse unless they both purchased it before they even though of officially marrying but planned on just living as married with out the ring or paper, another reason that piece of paper is important. If you buy a house after the marriage with your husband or wife, that would seem to be too late to be part of any prenuptial arrangement.

Lightlyseared's avatar

It would probably depend on the exact wording of the prenup.

Dr_Lawrence's avatar

A marriage contract, properly drafted should have adequately dealt with such issues.

lillycoyote's avatar

This is really a question for an attorney, I don’t know if the second wife’s name being on the deed as co-owner is a big issue or not, but even in if it is she might only be entitled to the value of half the house… but both this article and this article indicate that a pre-nuptial agreements go into effect upon divorce or the death of one of the spouses and that a valid pre-nup generally supersedes state laws regarding inheritance and disposition of property. One of the articles also mentions that if the will and the pre-nup both say the same thing about who will get what it’s pretty iron-clad. Still, at this point, t’s probably something that is going to have to be sorted out by lawyers and a judge.

By what process and by whom was it decided that the house would revert to the second wife?

laureth's avatar

@lillycoyote – My aunt went to talk with my grandpa’s lawyer, when she started sorting things out after his death. This lawyer told her that the second wife’s name on the house superseded both the will and the prenup, and that even though the prenup said the house goes to my aunt, that this was true only in the case of divorce, not death (when normal law applies instead).

Sadly, my aunt isn’t fighting for the house, which is why she’s not consulting a second lawyer.

@Hypocrisy_Central – When these folks married, they each had significant property (both being elders and widowed previously). The prenup states that neither has a right to the other’s property, and the will states that no provision is made for the second spouse – everything largely goes to my aunt, with a small amount set aside for me. The problem comes in because they both moved into my grandpa’s house (which he owned prior to his second marriage), but this was then sold in order to move to a house the wife liked better, which was (stupidly) put into both names. The wife’s house, that she owned before the marriage, was “given” to one of her adult children. The intent was for his property to stay with my family, and her property to stay with hers, when they died.

lillycoyote's avatar

@laureth It is possible that you granfather’s lawyer is right, I don’t know. It would depend on the state and it’s laws regarding pre-nuptial agreements and inheritance, or possibly the way that the pre-nup was written. And is very sad that your aunt isn’t fighting it because that’s the only way it can be straightened out I think. And it’s her fight.

laureth's avatar

@lillycoyote – My aunt isn’t fighting for two reasons. One is that winning the house would likely be more of a financial burden than a financial gain. The second is that she “prayed about it” and thinks “everything happens for a reason,” [sigh].

Hypocrisy_Central's avatar

@laureth The prenup states that neither has a right to the other’s property, and the will states that no provision is made for the second spouse – everything largely goes to my aunt, with a small amount set aside for me. Just going off the logic of the situation, not what the law might actually say, the house that the prenup covered was sold. Reason being, The problem comes in because they both moved into my grandpa’s house (which he owned prior to his second marriage), but this was then sold in order to move to a house the wife liked better, which was (stupidly) put into both names. The house your aunt is contesting was a house not in play when the prenup was drawn unless there is a contention there in the prenup to address that.

laureth's avatar

@Hypocrisy_Central – You may be correct, but that would depend on the exact prenup language, which I would really like to see.

lillycoyote's avatar

@laureth I was looking into this and this article says that in some states prenuptial agreements are public records. You might want to check into whether or not they are in the state that governs your grandfather’s prenup.

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