Every marriage will come to an end. Some terminate by divorce and others terminate by death. Eventually every marriage will end.
Most people who want Prenuptial Agreements (also called premarital agreements or prenups) want the agreement for protection in the event of a divorce. However, a recent case in Massachusetts explained that a well drafted agreement should also address termination by death.
In the case of Stacy v Stacy the husband and wife had a Prenuptial agreement that had the following language: “a final and complete settlement of all matters relating to the interest and obligations of each [party] with respect to all future property matters, including but not limited to alimony, support, maintenance, property assignment, and the rights of the parties under G. L. c. 208, § 34, as amended, in the event of a divorce.” Apparently the agreement was silent on what was to happen if a spouse died.
The husband died and the personal representative of his estate sued his widow over ownership of personal property. The Appeals Court held that the language of the agreement did not exclude applicability to other events such as death. This meant that the personal representative and the widow had to try a case to figure out how to interpret the agreement. Most people who draft prenuptial agreements do so to avoid litigation. This agreement failed to do so.
A properly drafted prenuptial agreement should specifically address termination of the marriage by both marriage and death. If the parties don’t want to include events other than divorce then the agreement should state so in clear language. In the Stacy case they could have included a sentence to the effect of “in the event this marriage terminates by death this agreement shall have no effect and shall not decrease the rights of the surviving spouse.”
If you are considering a prenuptial agreement you should consult an experienced family law attorney to draft an agreement that includes provisions for termination by death and by divorce.