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RayAnswers, Attorney
Category: Estate Law
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Experience:  Texas lawyer for 29 years in Estate law
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Hi I have a few questions regarding family/estate law

Customer Question

Hi

I have a few questions regarding family/estate law
Submitted: 1 year ago.
Category: Estate Law
Expert:  RayAnswers replied 1 year ago.
Thanks for letting me help you today.Can you give me your questions and your state here as well so thata I may assist?
Customer: replied 1 year ago.

Hi,


NYS...I have a few questions: first is are there any conditions that would render a prenup void? Second,if the prenup states what the death benefit would be for the surviving spouse(estate percentage) does a will drawn up after the marriage over ride the prenup agreement?And,third,if only one spouse is listed on the deed of the mariial home and that spouse predeases the other,does the home go to the surviving spouse or to the deceased estate? Thank you.

Expert:  RayAnswers replied 1 year ago.

Thanks for your questions lets go through them.

NYS...I have a few questions: first is are there any conditions that would render a prenup void?

Answer:Yes a court can void a prenuptial agreement.The court may decide there was unequal legal representation among the parties, or that particular parts of the agreement were unfair or over reaching,unconsciousable etc.They are attackable for such reasons.

Reference..

http://www.divorce360.com/divorce-articles/law/advice/can-i-break-this-prenup.aspx?artid=890


Second,if the prenup states what the death benefit would be for the surviving spouse(estate percentage) does a will drawn up after the marriage over ride the prenup agreement?

Answer:
The probate court would have to decide that issue.Clearly there may be a conflict court has to decide if the prenup was valid and then if will was valid and then which one trumps the other one.Pre nups in general would decide what assets are part of the estate or not and then will determines who gets the estate.Here this will all be on the table for the judge to rule on in probate court.

And,third,if only one spouse is listed on the deed of the mariial home and that spouse predeases the other,does the home go to the surviving spouse or to the deceased estate?

Answer: Unless the deed was one with a joint tenancy with right of survivorship it should pass through probate--although here court may have to decide on legality of prenup to determine first whether the deceased had an interest to then pass through the will to named heirs.

There are going to be a factual dispute here about whether the prenup was in fact legal and binding and that they effects what assets then pass under the terms of the will and thats assuming the will is held to be valid.The court will have the final say in all of this if it is not resolved.Often these cases are settled along the way because of the uncertainty of the outcome.


Thanks for your patience while I responded to your questions.Please let me know if you have more follow up.Thanks again.

I hope that you will be so kind as to leave a positive rating. If you do have any additional questions about my answer please click the "Continue Conversation Link" so I can provide you with a fully satisfactory answer. Please be aware that any rating of 1 or 2 is reflected as a negative rating and I receive no credit for my answers.

This communication does not establish an attorney-client relationship.Information provided here is not legal advice. Rather it is simply general information.

 

 

Here is another really good reference about prenups estates, and validity and NY law on point.

 

http://www.freelegalaid.com/nav/new-york/prenuptual-and-postnuptual/article/prenuptial-agreements-new-york

RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 30330
Experience: Texas lawyer for 29 years in Estate law
RayAnswers and 2 other Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

So you cannot state whether prenup takes precedence over will?


I f certain terms agreed upon in the prenup are not honored,would that void it?

Expert:  RayAnswers replied 1 year ago.

If the prenup is held valid by the court it would precede the will.It determines what the estate is made up of.In other words normally it consists of separate all of the premarital property and half of the marital.But if the prenup had the deceased party waiving some of that it might reduce the assets of the estate.So then the will determines who the heirs are and what they are to receive.

So there would be fact questions for a probate court to rule on.

1.Was entire prenup valid or parts of it.That determines what the estate consists of.
If it held to be invalid then all of premarital property and half of marital would be the property of the estate.


2.Then the court determines whether will was properly executed and valid here, deceased had mental capacity, etc.

3.Then court would apply the will to the assets it determines the deceased had and distribute them to the heirs after payment of claims, taxes, etc.And here if there is conflict between the documents court has to make findings of fact on these.

The terms of the prenup are honored if the prenup is held to be valid.It would be subject to attack on the same grounds as it would be in a divorce here--did one party have legal counsel and the other did not.Was there other issues that render it unenforceable.If court finds it valid they would apply it since it predates the will terms and death fo decedent.

If it is invalid then you go back to marital property laws and the estate consists of the premarital property and an equal share of marital property.


Thats as clear as I can be here.There are these fact issues that only the court can address and rule on.This really is the purpose of the probate judge to decide such issues given the two documents.And of course a loosing party would have appeal rights after the court rules.And again it is possibel it g ets resolved along the way due to uncertainty of how judge will rule.

Customer: replied 1 year ago.

Thank you for your time.

Expert:  RayAnswers replied 1 year ago.
You are welcome.If you have more questions down the road post them for Ray and I will be happy to assist.Have a good evening.

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